| People v Kindred |
| 2018 NY Slip Op 07789 [166 AD3d 1229] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Lameik Kindred, Appellant. |
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Noel Mendez of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (McDonough, J.),rendered August 19, 2016 in Albany County, convicting defendant upon his plea ofguilty of the crime of attempted criminal sale of a controlled substance in the thirddegree.
Defendant pleaded guilty to the reduced charge of attempted criminal sale of acontrolled substance in the third degree and waived his right to appeal with theunderstanding that he would be sentenced to no more than six years in prison followedby two years of postrelease supervision. Defendant, who had been released to probationsupervision, failed to appear at sentencing and a bench warrant was issued. Whendefendant ultimately appeared, Supreme Court determined that it was not bound by theterms of the plea agreement given defendant's violation of the terms of the Parkeradmonishment and then sentenced defendant, as a second felony offender, to a prisonterm of six years followed by three years of postrelease supervision. Defendantappeals.
We affirm. To the extent that defendant challenges the waiver of the right to appeal,we find that Supreme Court adequately distinguished the right to appeal from those rightsautomatically forfeited by the guilty plea, and defendant acknowledged that heunderstood the nature of the appeal waiver. In addition, defendant executed a writtenappeal waiver in open court after discussing the waiver with his counsel andacknowledging that he understood its contents. As such, we find that defendant's waiverof the right to appeal was knowing, voluntary and intelligently entered (see People v Atkinson, 164AD3d 1572, 1572 [2018]; People v Garcia, 164 AD3d 958, 958-959 [2018], lvdenied 32 NY3d 1003 [2018]). Accordingly, defendant's challenge to the severity ofthe sentence imposed is precluded (see People v Selim, 164 AD3d 1576, 1576 [2018]; People v Tucker, 164 AD3d948, 949-950 [2018]). Although defendant's challenge to the voluntariness of hisguilty plea survives the valid appeal waiver, it is nevertheless unpreserved for our reviewas the record does not reflect that defendant made an [*2]appropriate postallocution motion (see People v Lamb, 162 AD3d1395, 1396 [2018]; Peoplev Gomez, 162 AD3d 1311, 1311-1312 [2018]).
Defendant's ineffective assistance of counsel claim—to the extent that itimpacts the voluntariness of the plea—is also not preserved for our review in theabsence of an appropriate postallocution motion (see People v Retell, 164 AD3d 1501, 1502 [2018]; People v White, 164 AD3d959, 960 [2018]). To the extent that defendant asserts that he received theineffective assistance of counsel because he was not advised of his ability to move towithdraw his plea, this concerns matters outside the record and, therefore, is moreappropriately addressed in the context of a motion pursuant to CPL article 440 (see People v Ward, 161 AD3d1488, 1488-1489 [2018], lv denied 32 NY3d 942 [2018]; People v Hayden, 155 AD3d1309, 1311 [2017]).
Egan Jr., J.P., Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.