| People v Rivera |
| 2018 NY Slip Op 06297 [164 AD3d 1573] |
| September 27, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Douglas Rivera, Appellant. |
Carolyn B. George, Albany, for appellant, and appellant pro se.
Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Appeal from a judgment of the County Court of Montgomery County (Catena, J.), renderedAugust 24, 2015, convicting defendant upon his plea of guilty of the crime of burglary in thesecond degree.
In full satisfaction of a five-count indictment and additional potential charges, defendantagreed to plead guilty to one count of burglary in the second degree in exchange for a prison termof 14 years followed by five years of postrelease supervision. The plea agreement also included awaiver of the right to appeal. Defendant subsequently pleaded guilty to burglary in the seconddegree, and County Court—after rejecting defense counsel's plea forleniency—imposed the contemplated prison term. This appeal ensued.
County Court did not explain "that the right to appeal is separate and distinct from the rightsautomatically forfeited by pleading guilty" (People v White, 163 AD3d 1358, 1358 [2018]), a copy of thewritten waiver executed by defendant is not included in the record before this Court (see People v Barnhill, 135 AD3d1247, 1248 [2016]) and County Court failed to ascertain whether "defendant had read thewaiver, was aware of its contents or had discussed it with counsel" (People v Larock, 139 AD3d 1241,1242 [2016], lv denied 28 NY3d 932 [2016]). As County Court's brief inquiries ofdefendant "fell short of ensuring that defendant appreciated the [appellate] right that he wasrelinquishing and understood the consequences thereof" (People v Mallard, 163 AD3d 1350, 1351 [2018]), we agree withdefendant that his waiver of the right to appeal was invalid (see id.). Although the invalidwaiver does not preclude defendant's claim that the sentence imposed is harsh and excessive (see People v Levielle, 161 AD3d1391, 1392 [2018]), upon consideration of the entire record, we find no extraordinarycircumstances or abuse of discretion warranting a reduction of the sentence in the interest ofjustice (see e.g. People v Suddard, 164 AD3d 950, 951 [2018]).
We further reject defendant's remaining contentions, raised in his pro se brief. Defendant'schallenges to the voluntariness and factual sufficiency of his plea are unpreserved for [*2]our review absent record evidence of an appropriate postallocutionmotion (see People v Burks, 163AD3d 1286, 1287 [2018]; People vLeflore, 154 AD3d 1164, 1165 [2017], lv denied 30 NY3d 1106 [2018]); hisineffective assistance of counsel claim—to the extent that it impacts upon thevoluntariness of his plea—is similarly unpreserved (see People v Haverly, 161 AD3d 1483, 1484 [2018], lvdenied — NY3d &mdash, 2018 NY Slip Op 98623[U] [2018]; People v Duggins, 161 AD3d1445, 1446 [2018], lv denied — NY3d &mdash, 2018 NY Slip Op 98598[U][2018]). Further, given that defendant did not make any statements during the plea colloquy thatnegated an element of the subject crime, cast doubt upon his guilt or otherwise called intoquestion the voluntariness of his plea, the narrow exception to the preservation requirement doesnot apply (see People vKruppenbacher, 163 AD3d 1266, 1267 [2018]; People v Lamb, 162 AD3d 1395, 1396 [2018]). Additionally,defendant's jurisdictional arguments are unavailing, as any challenge to the sufficiency of theindictment is precluded by defendant's guilty plea (see e.g. People v Brice, 146 AD3d 1152, 1153-1154 [2017], lvdenied 29 NY3d 996 [2017]), and any argument addressed to the factual sufficiency of hisallocution is unpreserved (cf. People vQuinones, 51 AD3d 1226, 1227 [2008], lv denied 10 NY3d 938 [2008]). Thebalance of defendant's pro se claims, including his assertion that he was denied due process, havebeen examined and found to lack merit.
Garry, P.J., McCarthy, Lynch, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.