| People v McClain |
| 2018 NY Slip Op 06830 [165 AD3d 1345] |
| October 11, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Torjuan McClain, Also Known As Tyler James and T.J.,Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered June 17, 2014, convicting defendant upon his plea of guilty of the crime of rape in thefirst degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to rape in the first degreein satisfaction of a three-count indictment and waived his right to appeal. Consistent with theterms of the plea agreement, County Court sentenced defendant to a prison term of 15 years to befollowed by 20 years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's claim, his combined oral and written waiver of appealwas knowing, voluntary and intelligent (see People v Sanders, 25 NY3d 337, 341 [2015]; People v Lopez, 6 NY3d 248, 256[2006]; compare People vBradshaw, 18 NY3d 257, 265-266 [2011]). The record reflects that County Courtcarefully explained the nature of the right to appeal and the consequences of the waiver of appeal,made clear its separate and distinct nature, afforded defendant two recesses to discuss the waiverwith counsel, and ascertained that defendant had reviewed the written waiver with counsel andunderstood it prior to signing it in open court. Accordingly, defendant's challenge to the factualsufficiency of his plea allocution, which was not preserved for our review by an appropriatepostallocution motion (see CPL 220.60 [3]; People v Leflore, 154 AD3d 1164, 1165 [2017], lv denied30 NY3d 1106 [2018]), is foreclosed by his valid appeal waiver (see People v Chaney, 160 AD3d1281, 1283 [2018], lv denied 31 NY3d 1146 [2018]; People v Robinson, 155 AD3d1252, 1253 [2017], lv denied 30 NY3d 1119 [2018]).[FN1] To the extent that defendant challenges thesufficiency of the evidence before the grand jury [*2]and thesufficiency of the evidence underlying the charge to which he pleaded guilty, these claims arenonjurisdictional and are likewise precluded by his guilty plea and appeal waiver (see Peoplev Hansen, 95 NY2d 227, 232-233 [2000]; People v Chaney, 160 AD3d at 1283; People v Keebler, 15 AD3d 724,727 n 1 [2005], lv denied 4 NY3d 854 [2005]).[FN2]
Defendant's argument that his guilty plea was not knowing, voluntary and intelligent becausehe is cognitively impaired and suffers from mental illness survives his appeal waiver but was notpreserved by an appropriate postallocution motion, despite an opportunity to do so, and therecord does not reflect that he made any statements that triggered the narrow exception to thepreservation requirement (see People vTyrell, 22 NY3d 359, 363-364 [2013]; People v Lopez, 71 NY2d 662, 665[1988]; People v Case, 139 AD3d1239, 1240 [2016], lv denied 28 NY3d 928 [2016]). Moreover, County Courtordered competency exams pursuant to CPL article 730 at defense counsel's request (seeCPL 730.10 [2]), a report was issued concluding that he was competent to proceed, which hedeclined to challenge, and he made no request for a competency hearing (see CPL 730.10[1]; People v Mendez, 1 NY3d15, 19 [2003]; People v Banker,138 AD3d 1253, 1254 [2016], lv denied 28 NY3d 926 [2016]). Finally, defendantexpressly declined to withdraw his plea at sentencing (see People v Case, 139 AD3d at1240). Were the issue preserved, we would find that his challenges to his guilty plea areunsupported by the record (see People vVandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]).
McCarthy, J.P., Devine, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:In any event, were we to addressthe merits of this claim despite the lack of preservation, we would find that, during the pleaallocution, defendant adequately admitted to the facts as alleged in the indictment, including thathe had engaged in sexual intercourse with the identified victim by forcible compulsion, which hereaffirmed at sentencing.
Footnote 2:Defendant's valid appeal waiveralso precludes any challenge to County Court's denial of his motion to dismiss the indictmentbased upon insufficient evidence (seePeople v Trapani, 162 AD3d 1121, 1122 [2018]).