| People v Norton |
| 2018 NY Slip Op 05977 [164 AD3d 1502] |
| September 6, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joshua P. Norton, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Mary Theresa Northrup of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered November 19, 2015, convicting defendant upon his plea of guilty of the crime of sexualabuse in the first degree.
Defendant was charged by felony complaint with sexual abuse in the first degree andendangering the welfare of a child following allegations that he subjected a four-year-old relativeto sexual contact. Pursuant to the terms of a plea agreement, defendant waived indictment andagreed to be prosecuted by a superior court information charging him with one count of sexualabuse in the first degree, pleaded guilty to this crime in satisfaction of the charges and waived hisright to appeal. County Court thereafter imposed the agreed-upon prison term of five years and,in its discretion, directed a period of 10 years of postrelease supervision. Defendant appeals.
We affirm. Initially, we find that defendant's unchallenged oral and written waiver of appeal,entered in connection with his guilty plea, was knowing, voluntary and intelligent (see People v Sanders, 25 NY3d337, 339-342 [2015]; People vSmith, 155 AD3d 1244, 1245 [2017]). Although defendant's challenge to thevoluntariness of his plea survives his valid appeal waiver (see People v Seaberg, 74NY2d 1, 9-10 [1989]), this issue is unpreserved for our review given that the record does notreflect that he made an appropriate postallocution motion to vacate the plea despite ampleopportunity to do so (see CPL 220.60 [3]; People v Leach, 26 NY3d 1154, 1154 [2016]; People v Peque, 22 NY3d 168,182-183 [2013], cert denied 574 US &mdash, 135 S Ct 90 [2014]). Moreover, the narrowexception to the preservation requirement was not triggered here, as defendant did not make anystatements during the plea colloquy that cast doubt upon his guilt or otherwise called intoquestion the voluntariness of his plea (see People v Williams, 27 NY3d 212, 219-222 [2016]; People vLopez, 71 NY2d 662, 666 [1988]; People v Sisto, 161 AD3d 1483, 1483 [2018]).
[*2] Defendant's assertion that he was deprived of the effectiveassistance of counsel, which survives his valid appeal waiver to the limited extent that it impactsupon the voluntariness of his plea, is unpreserved for the same reason (see People v Jackson, 159 AD3d1276, 1277 [2018], lv denied 31 NY3d 1149 [ 2018]). Were the issue properlybefore us, we would find that it lacks merit, as defendant received a very favorable plea bargainand nothing in this record calls into question the apparent effectiveness of counsel (see People v London, 153 AD3d1032, 1033 [2017]; People vDubois, 150 AD3d 1562, 1564 [2017]). Defendant's claims that counsel failed toinvestigate the charges or to adequately inform him of and pursue available defenses, discoveryand motion practice are largely premised upon matters that are outside of the record on appealand, as such, are more appropriately considered in a motion pursuant to CPL article 440 (see People v Duggins, 161 AD3d1445, 1446 [2018]; People vRutigliano, 159 AD3d 1280, 1281 [2018], lv denied 31 NY3d 1121 [2018]).
Garry, P.J., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.