| People v McDonald |
| 2018 NY Slip Op 06600 [165 AD3d 1327] |
| October 4, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Bryan C. McDonald, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of St. Lawrence County(Champagne, J.), rendered December 5, 2016, convicting defendant upon his plea of guilty of thecrimes of attempted assault in the second degree (two counts).
Defendant, formerly a United States Border Patrol agent, was indicted and charged withassault in the second degree under Penal Law § 120.05 (12). The charges stemmedfrom an incident that occurred in December 2015 as defendant and his spouse were driving homefrom a family member's retirement party. As defendant slowed to turn off of County Route 37 inthe Town of Massena, St. Lawrence County, his wife, who had been drinking earlier in theevening, announced that she was going to be sick, opened the passenger door of the vehicle andeither stepped or fell out onto the travel portion of the road. Shortly thereafter, defendant's wifewas struck and killed by an oncoming car. According to defendant, he "lost it and startedswinging," inflicting various injuries upon the subject victims—two uninvolved motoristswho stopped to offer assistance.
After County Court denied defendant's motion to dismiss the indictment as legallyinsufficient and granted the People's motion to preclude any evidence in support of defendant'sproffered defense of extreme emotional disturbance, defendant agreed to waive his right toappeal and plead guilty to attempted assault in the second degree (two counts) in exchange forconcurrent, five-year terms of probation. Defendant thereafter pleaded guilty in conformity withthe terms of the plea agreement, and County Court imposed the promised concurrent terms ofprobation. Defendant now appeals.
[*2] Contrary todefendant's assertion, he was apprised at the start of the plea colloquy that a waiver of his right toappeal was a condition of the plea agreement; County Court then explained that the appealwaiver was separate and distinct from the trial-related rights that defendant was forfeiting, anddefendant, in turn, confirmed his understanding of the waiver (see People v Chaney, 160 AD3d1281, 1282-1283 [2018], lv denied 31 NY3d 1146 [2018]; People v Larose, 160 AD3d 1215,1215 [2018], lv denied 31 NY3d 1150 [2018]). Additionally, defendant signed a detailedwritten waiver in open court and assured County Court that he had read the waiver, understoodits contents, was prepared to abide by its terms and had been afforded sufficient time to discussthe waiver with counsel (see People vVenable, 161 AD3d 1315, 1315 [2018], lv denied 31 NY3d 1154 [2018]; People v Smith, 157 AD3d 1059,1059 [2018], lv denied 31 NY3d 987 [2018]). Under these circumstances, we find thatdefendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Williams, 163 AD3d1172, 1172-1173 [2018]; People vSavage, 158 AD3d 854, 855 [2018]). Accordingly, defendant's challenge to the severityof the promised sentence imposed is precluded (see People v Velez, 158 AD3d 952, 952-953 [2018]).
Although defendant's challenge to the voluntariness of his plea survives his appeal waiver,this argument is unpreserved in the absence of an appropriate postallocution motion (seePeople v Williams, 163 AD3d at 1173; People v Edwards, 160 AD3d 1280, 1281 [2018], lv denied31 NY3d 1147 [2018]). Defendant's ineffective assistance of counsel claim—to the extentthat it impacts upon the voluntariness of his plea—is similarly unpreserved for our review(see People v Reap, 163 AD3d1287, 1289 [2018]; People vBurks, 163 AD3d 1286, 1287 [2018]). Additionally, as defendant did not make anystatements during the plea colloquy that were inconsistent with his guilt or otherwise called intoquestion the voluntariness of his plea, the narrow exception to the preservation requirement isinapplicable (see People v Jackson,159 AD3d 1276, 1276 [2018], lv denied 31 NY3d 1149 [2018]; People vSmith, 157 AD3d at 1060).
Defendant further contends that, in order to sustain his conviction of attempted assault in thesecond degree (see Penal Law §§ 110.00, 120.05 [12]), it wasnecessary to establish that he possessed the specific intent to cause physical injury to a personwho was 65 years of age or older. To the extent that defendant's argument on this point can beconstrued as a challenge to the legal sufficiency of the evidence supporting the indictment, suchclaim was waived by defendant's guilty plea (see People v Harris, 139 AD3d 1244, 1245 [2016], lvdenied 28 NY3d 930 [2016]; Peoplev Kuhlmann, 130 AD3d 1086, 1087 [2015], lv denied 26 NY3d 1089 [2015]; People v Melendez, 48 AD3d 960,960 [2008], lv denied 10 NY3d 962 [2008]). Similarly, any assertion that the plea wasfactually deficient in this regard is precluded by defendant's valid appeal waiver and, further, isunpreserved for our review (see Peoplev Brown, 163 AD3d 1269, 1271 [2018]; People v Widger, 160 AD3d 1297, 1297-1298 [2018]). Defendant'sremaining contentions, to the extent not specifically addressed, have been examined and found tobe lacking in merit.
McCarthy, J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.