| People v Aldous |
| 2018 NY Slip Op 07371 [166 AD3d 1077] |
| November 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Asten Aldous, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Noel Mendez of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered September 5, 2014, convicting defendant upon his plea of guilty of thecrimes of rape in the second degree and criminal possession of a weapon in the thirddegree.
Defendant agreed to waive indictment and be prosecuted pursuant to a superior courtinformation charging him with rape in the second degree and criminal possession of aweapon in the third degree in exchange for a prison term of seven years plus 10 years ofpostrelease supervision on the rape charge and 2
We affirm. Contrary to defendant's assertion, County Court explained that the waiverof appeal was separate and distinct from the trial-related rights that defendant wasforfeiting, and defendant, in turn, indicated that he understood and agreed to suchwaiver. Additionally, following a discussion with counsel, defendant executed a writtenwaiver in open court and again confirmed his understanding of the document, as well ashis agreement to be bound by its terms. Under these circumstances, we are satisfied thatdefendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Rogers, 162AD3d 1410, 1410 [2018]; People v Tucker, 161 AD3d 1481, 1482 [2018], lvdenied 31 NY3d 1153 [2018]; People v Royal, 161 AD3d 1217, 1218 [2018], lvdenied 32 NY3d 1007 [2018]).
Although defendant further contends that his plea was involuntary, his argument onthis point is unpreserved for our review in the absence of an appropriate postallocutionmotion (see People vGomez, 162 AD3d 1311, 1311-1312 [2018]; People v White, 157 AD3d1128, 1129[*2][2018], lv denied 31 NY3d1018 [2018]; People vMcKnight, 144 AD3d 1334, 1335 [2016], lv denied 28 NY3d 1148[2017]). Additionally, defendant did not make any statements during the course of hisallocution that negated an element of the charged crimes or otherwise called intoquestion the voluntariness of his plea; hence, the narrow exception to the preservationrequirement is inapplicable (seePeople v Lamb, 162 AD3d 1395, 1396 [2018]; People v Gray, 162 AD3d1248, 1248 [2018]). To the extent that defendant's ineffective assistance of counselclaim impacts upon the voluntariness of his plea, such claim is similarly unpreserved forour review (see People vGause, 159 AD3d 1277, 1278 [2018]; People v Pringle, 155 AD3d 1085, 1085-1086 [2017]).Further, the majority of defendant's arguments as to the voluntariness of his plea and hisrelated ineffective assistance of counsel claim—namely, that counsel providedinadequate advice regarding potential defenses, related erroneous information regardingdefendant's sentencing exposure, pressured defendant to accept the plea and ignoreddefendant's wishes to proceed to a grand jury and contest the charges—are basedupon matters outside of the record and, as such, are more properly the subject of a CPLarticle 440 motion (see People vWilliams, 163 AD3d 1172, 1173 [2018], lv denied 32 NY3d 1009[2018]; People v Cantey,161 AD3d 1449, 1450-1451 [2018], lv denied 32 NY3d 935 [2018]; People v Muller, 159 AD3d1232, 1233 [2018]). Finally, in light of the valid appeal waiver, defendant'schallenge to the severity of his agreed-upon sentence is precluded (see People vRoyal, 161 AD3d at 1218; People v Edwards, 160 AD3d 1280, 1281 [2018], lvdenied 31 NY3d 1147 [2018]).
Garry, P.J., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.