People v Retell

2018 NY Slip Op 05976 [164 AD3d 1501]

September 6, 2018

Appellate Division, Third Department

As corrected through Wednesday, October 24, 2018

[*1](September 6, 2018)

The People of the State of New York,Respondent, v Scott D. Retell, Appellant.

Brian M. Quinn, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.

Aarons, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered April 29, 2016, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a controlled substance in the third degree.

Pursuant to a negotiated plea agreement, defendant waived indictment and agreed to beprosecuted pursuant to a superior court information charging him with one count of attemptedcriminal sale of a controlled substance in the third degree. Defendant subsequently waived hisright to appeal and pleaded guilty to the charged crime—in full satisfaction of all pendingand potentially related charges—with the understanding that he would be sentenced as asecond felony offender to a prison term of four years followed by a period of postreleasesupervision ranging from 11/2 to 3 years. Consistent with the terms of the pleaagreement, County Court sentenced defendant to four years in prison followed by three years ofpostrelease supervision and, at defense counsel's request, recommended defendant for shockincarceration. Defendant now appeals.

We affirm. Although defendant's challenge to the voluntariness of his plea survives hisuncontested waiver of the right to appeal, this claim is unpreserved for our review absentevidence of an appropriate postallocution motion (see People v Conley, 161 AD3d 1486, 1486-1487 [2018]; People v Busch-Scardino, 158 AD3d988, 988 [2018]; People vPittman, 157 AD3d 1130, 1131 [2018], lv denied 31 NY3d 1085 [2018]).Defendant's ineffective assistance of counsel claim—to the extent that it impacts upon thevoluntariness of his plea—is similarly unpreserved (see People v Muller, 159 AD3d 1232, 1232 [2018]; People v Lewis, 143 AD3d 1183,1185 [2016]), and any assertion that defense counsel failed to pursue certain motions or explorepotential defenses implicates matters outside of the record that are best addressed in the contextof a CPL article 440 motion (see e.g.People v Cantey, 161 AD3d 1449, 1450-1451 [2018]; People v Pooler, 158 AD3d 935,936 [2018]). Contrary to defendant's assertion, the [*2]narrowexception to the preservation requirement was not triggered, as he did not make any statementsduring the plea colloquy that cast doubt upon his guilt, negated an element of the charged crimeor otherwise called into question the voluntariness of his plea (see People v Joubert, 155 AD3d1255, 1256 [2017], lv denied 30 NY3d 1116 [2018]; People v Davis, 150 AD3d 1396,1397 [2017], lv denied 30 NY3d 1018 [2017]; People v Forest, 141 AD3d 967, 968-969 [2016], lv denied28 NY3d 1145 [2017]).

Garry, P.J., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.