People v Milligan

2018 NY Slip Op 06831 [165 AD3d 1347]

October 11, 2018

Appellate Division, Third Department

As corrected through Wednesday, November 28, 2018

[*1]

The People of the State of New York,Respondent, v William M. Milligan II, Appellant.

Brian M. Quinn, Albany, for appellant.

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

Rumsey, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered September 1, 2016, convicting defendant upon his plea of guilty of the crimes ofattempted criminal possession of a weapon in the third degree and criminal possession of acontrolled substance in the fourth degree.

Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with attempted criminal possession of a weapon in the third degree and criminalpossession of a controlled substance in the fourth degree. He pleaded guilty to these crimes andwaived his right to appeal. In accordance with the terms of the plea agreement, defendant wassentenced as a second felony offender and concurrent sentences were imposed consisting of twoyears in prison followed by five years of postrelease supervision on his conviction of attemptedcriminal possession of a weapon in the third degree, and two years in prison followed by11/2 years of postrelease supervision on his conviction of criminal possession of acontrolled substance in the fourth degree. He now appeals.

Initially, although not precluded by his waiver of the right to appeal, defendant's challenge tothe voluntariness of his guilty plea has not been preserved for our review as the record does notdisclose that he made an appropriate postallocution motion (see People v Evans, 156 AD3d 1246, 1246-1247 [2017]; People v Dolberry, 147 AD3d1149, 1150 [2017], lv denied 29 NY3d 1078 [2017]). Moreover, the narrowexception to the preservation requirement is inapplicable as defendant did not make anystatements during the plea colloquy that cast doubt upon his guilt (see People v Evans,156 AD3d at 1247; People vTetreault, 152 AD3d 1081, 1082 [2017], lv denied 30 NY3d 984 [2017]). Theabsence of a postallocution motion also renders unpreserved defendant's claim of ineffectiveassistance of counsel insofar it impacts the voluntariness of his guilty plea (see People vDolberry, 147 AD3d at 1150; People v Taylor, 144 AD3d 1317, 1318 [2016], lv denied28 NY3d 1151 [2017]). To the extent that defendant [*2]complains that his counsel did not make appropriate motions orconduct necessary discovery, these claims are foreclosed by his guilty plea (see People v Rutigliano, 159 AD3d1280, 1281 [2018], lv denied 31 NY3d 1121 [2018]; People v Trombley, 91 AD3d1197, 1201 [2012], lv denied 21 NY3d 914 [2013]).

McCarthy, J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.