People v Bonafante

2018 NY Slip Op 07788 [166 AD3d 1228]

November 15, 2018

Appellate Division, Third Department

As corrected through Wednesday, January 2, 2018

[*1]

The People of the State of New York,Respondent, v Nicholas Bonafante, Appellant.

Brian M. Quinn, Albany, for appellant.

Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), forrespondent.

Clark, J. Appeal from a judgment of the County Court of Rensselaer County (Young,J.), rendered August 23, 2016, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the fifth degree.

In satisfaction of a nine-count indictment, defendant pleaded guilty to criminalpossession of a controlled substance in the fifth degree and waived his right to appeal. Inaccordance with the plea agreement, County Court sentenced defendant, as a secondviolent felony offender, to a prison term of 21/2 years followed by twoyears of postrelease supervision, with such sentence to run concurrently with a prisonsentence he had received in another county. Defendant appeals.

Although defendant's challenge to the voluntariness of his guilty plea survives theunchallenged waiver of the right to appeal, it is nevertheless unpreserved for our review,as the record does not reflect that defendant made an appropriate postallocution motion(see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Kruppenbacher, 163AD3d 1266, 1267 [2018]; People v Lamb, 162 AD3d 1395, 1396 [2018]). The narrowexception to the preservation requirement is inapplicable because, contrary to defendant'scontention, he did not make any statements during the plea colloquy that cast doubt uponhis guilt or otherwise called into question the voluntariness of his plea (see People vLopez, 71 NY2d at 666; People v Gomez, 162 AD3d 1311, 1312 [2018]).Defendant's ineffective assistance of counsel claim—to the extent that it impactsthe voluntariness of the plea—is similarly unpreserved for review given the lack ofan appropriate postallocution motion (see People v Lamb, 162 AD3d at 1396; People v Rutigliano, 159AD3d 1280, 1281 [2018], lv denied 31 NY3d 1121 [2018]). The remainderof defendant's ineffective assistance of counsel claim is premised on matters outside therecord and is more appropriately considered in the context of a CPL article 440 motion(see People v Tucker, 161AD3d 1481, 1482 [2018], lv denied 31 NY3d 1153 [2018]; People vRutigliano, 159 AD3d at 1281).

[*2] McCarthy, J.P., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.