| People v Gorman |
| 2018 NY Slip Op 06833 [165 AD3d 1349] |
| October 11, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Thomas H. Gorman, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered March 21, 2016, convicting defendant upon his plea of guilty of the crimes of vehicularmanslaughter in the first degree and vehicular assault in the first degree.
On October 31, 2015, defendant was driving while intoxicated and struck a group of collegestudents, killing one and seriously injuring two others. Pursuant to a plea agreement, defendantwaived indictment, pleaded guilty to a superior court information charging him with vehicularmanslaughter in the first degree and vehicular assault in the first degree and waived his right toappeal. County Court sentenced defendant within the range contemplated by the plea agreement,namely, an aggregate prison term of 5 to 15 years. Defendant appeals.
Initially, defendant's challenges to the sufficiency of the plea allocution and to the sentence asharsh and excessive are precluded by his unchallenged appeal waiver (see People v Sanders, 25 NY3d337, 340-341 [2015]; People vLopez, 6 NY3d 248, 256 [2006]; People v Chaney, 160 AD3d 1281, 1283 [2018], lv denied31 NY3d 1146 [2018]; People vWelden, 156 AD3d 1241, 1241 [2017]). The contention in defendant's pro sesupplemental brief that unspecified "pertinent information might have been omitted" from thepresentence report, even assuming that it survives his appeal waiver, was not raised prior tosentencing and is not preserved for our review (see People v Vanbuskirk, 126 AD3d 1239, 1240 [2015]).Defendant's challenge to the voluntariness of his plea is not precluded by his appeal waiver, but itis unpreserved for our review as the record does not reflect that he made an appropriatepostallocution motion despite having had ample opportunity to do so prior to sentencing (see People v Conceicao, 26 NY3d375, 381-382 [2015]; People vTyrell, 22 NY3d 359, 363-364 [2013]; People v Duvall, 157 AD3d 1060, 1061 [2018], lv denied31 NY3d 1081 [2018]). Further, defendant made no statements during the plea allocution thattriggered the narrow exception to the preservation rule (see People v Williams, 27 NY3d 212, 220 [2016]; People v[*2]Lopez, 71 NY2d 662, 666 [1988]). Were we to addressthis claim despite the lack of preservation, we would find that the "plea was knowingly,voluntarily and intelligently entered" (People v Welden, 156 AD3d at 1241).
To the extent that defendant's ineffective assistance of counsel claim impacts upon thevoluntariness of his plea, it survives his appeal waiver but was likewise not preserved for ourreview (see People v Williams, 163AD3d 1172, 1173-1174 [2018]; People v Rutigliano, 159 AD3d 1280, 1281 [2018], lvdenied 31 NY3d 1121 [2018]). Moreover, his challenge to counsel's motion practice anddiscovery efforts was forfeited by his guilty plea (see People v Ward, 161 AD3d 1488, 1489 [2018], lv denied32 NY3d 942 [2018]; People v Rutigliano, 159 AD3d at 1281). The balance ofdefendant's arguments involve matters outside of the record on appeal that are more properlyraised in a CPL article 440 motion (see People v Williams, 163 AD3d at 1173; see e.g. People v Pabon, 157 AD3d1057, 1058 [2018], lv denied 31 NY3d 986 [2018]). Defendant's remaining claimshave been considered and found to lack merit.
McCarthy, J.P., Lynch, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.