| People v Horton |
| 2018 NY Slip Op 07787 [166 AD3d 1226] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert A. Horton, Appellant. |
Robert A. Horton, Auburn, appellant pro se.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Champagne, J.), rendered May 4, 2016, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a forged instrument in the second degree.
Defendant, a prison inmate, was indicted and charged with one count of criminalpossession of a forged instrument in the second degree. The charge stemmed fromdefendant's possession of a forged court order bearing the false signature of a judge anddefendant's subsequent filing of that order with the St. Lawrence County Clerk's office.Pursuant to a plea agreement, defendant pleaded guilty to criminal possession of a forgedinstrument in the second degree with the understanding that, among other things, thePeople would not offer a sentencing recommendation or pursue persistent felonyoffender status. Consistent with the terms of the agreement, County Court sentenceddefendant, as a second felony offender, to a prison term of 2
We affirm. Initially, defendant's challenge to the voluntariness of his plea has notbeen preserved for our review. The record before us does not reflect that he made anappropriate postallocution motion (see CPL 220.60 [3]; People v Guidry, 158 AD3d901, 902 [2018]; People vWilliams, 155 AD3d 1253, 1254 [2017], lv denied 31 NY3d 1089[2018]), and the narrow exception to the preservation rule is inapplicable as defendantdid not make any statements during the plea colloquy or sentencing proceeding that castdoubt upon his guilt, negated an element of the crime or called into question thevoluntariness of his plea (seePeople v Pastor, 28 NY3d 1089, 1090-1091 [2016]; People v Lopez, 71NY2d 662, 665-666 [1988]; People v Tucker, 164 AD3d 948, 950 [2018]). Moreover,defendant's pro se submission prior to sentencing did not preserve his challenge to hisguilty plea because he was represented by counsel and was not entitled to hybridrepresentation (see People v Rodriguez, 95 NY2d 497, 501[*2][2000]). As such, County Court did not abuse its discretionin refusing to consider defendant's pro se motion to withdraw his plea prior to sentencing(see id. at 501-502; People v Fowler, 136 AD3d 1395, 1395 [2016], lvdenied 27 NY3d 996 [2016]; People v Martin, 125 AD3d 1054, 1054-1055 [2015], lvdenied 26 NY3d 932 [2015]; cf. People v Rayburn, 150 AD3d 1553, 1554-1555, 1555 n[2017]), particularly where, as here, defendant "did not request an adjournment ofsentencing or the removal of counsel" (People v Martin, 125 AD3d at 1055).
Even if defendant's statutory speedy trial claim was properly before us (seeCPL 210.20 [1] [g]; [2]; Peoplev Devino, 110 AD3d 1146, 1147 [2013]), this claim was waived when heentered his guilty plea (see People v O'Brien, 56 NY2d 1009, 1010 [1982]; People v Simpson, 146 AD3d1175, 1176 [2017], lv denied 30 NY3d 983 [2017]; People v Toledo, 144 AD3d1332, 1334 n 2 [2016], lv denied 29 NY3d 1001 [2017]; People v Slingerland, 101AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104 [2013]). Defendant'srelated claims that his counsel was ineffective for failing to move to suppress certainevidence and to dismiss the indictment on speedy trial grounds was not preserved giventhe absence of an appropriate postallocution motion in the record before us (seePeople v Simpson, 146 AD3d at 1176; People v Toledo, 144 AD3d at 1333).Finally, to the extent that defendant's contentions regarding the alleged ineffectiveness ofcounsel concern matters that are outside the record on appeal, they are moreappropriately addressed in a motion to vacate pursuant to CPL article 440 (see Peoplev Toledo, 144 AD3d at 1333 n 1; People v Case, 139 AD3d 1239, 1240-1241 [2016], lvdenied 28 NY3d 928 [2016]). Defendant's remaining claims have been consideredand found to be without merit.
Egan Jr., Lynch, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.