| People v Muller |
| 2018 NY Slip Op 07798 [166 AD3d 1240] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ernest Muller, Also Known as Big E,Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Barbara D. Underwood, Attorney General, New York City (Lisa E. Fleischmann ofcounsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered March 7, 2016, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree.
In satisfaction of a 75-count indictment, defendant pleaded guilty to criminal sale ofa controlled substance in the third degree and waived the right to appeal, with theunderstanding that his sentence would range from time served to five years in prison, tobe followed by two years of postrelease supervision. Despite defendant being arrested ona new charge of criminal sale of a controlled substance in the third degree while awaitingsentencing and admittedly violating a condition of his plea agreement that he cooperatewith the People in the prosecution of his coconspirators, County Court adhered to theterms of the plea agreement and sentenced him to five years in prison, to be followed bytwo years of postrelease supervision. Defendant now appeals.
We affirm. To the extent that defendant challenges the validity of his waiver of theright to appeal, the record reflects that his combined oral and written waiver of the rightto appeal was knowing, intelligent and voluntary (see People v Sanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d248, 256 [2006]). County Court distinguished the right to appeal from the rightsautomatically forfeited by a guilty plea. Defendant then signed a written waiver in opencourt after reading it and discussing it with counsel and affirmed to the court hisunderstanding thereof. Under these circumstances, we find that defendant validly waivedthe right to appeal (see People vDutcher, 156 AD3d 1122, 1122 [2017]; People v Plass, 150 AD3d 1558, 1559 [2017], lvdenied 29 NY3d 1094 [2017]). Defendant's claim that the sentence is harsh andexcessive is thus precluded by the valid appeal waiver (see People v Rogers, 162AD3d 1410, 1410 [2018]; People v Stein, 161 AD3d 1389, 1390[2018]).
[*2] Defendant's challenge to thevoluntariness of his plea survives his appeal waiver but is unpreserved for our review asthe record does not reflect that he made an appropriate postallocution motion (see People v Wood, 161 AD3d1447, 1449 [2018]; Peoplev Edwards, 160 AD3d 1280, 1281 [2018], lv denied 31 NY3d 1147[2018]). Moreover, defendant did not make any statements during the plea allocution thatcast doubt on his guilt or called into question the voluntariness of his plea so as to triggerthe narrow exception to the preservation rule (see People v Brewster, 161 AD3d 1309, 1310 [2018];People v Edwards, 160 AD3d at 1281). His ineffective assistance of counselclaim also survives his appeal waiver to the extent that it impacts the voluntariness of hisplea but is similarly unpreserved for review in the absence of a postallocution motion (see People v Robinson, 155AD3d 1252, 1253 [2017], lv denied 30 NY3d 1119 [2018]; People v Williams, 150 AD3d1549, 1551 [2017]). We note that the majority of the issues raised regardingineffective assistance of counsel, including that counsel failed to explore potentialdefenses, involve matters outside of the record and are more properly the subject of aCPL article 440 motion (seePeople v Cantey, 161 AD3d 1449, 1450-1451 [2018], lv denied 32NY3d 935 [2018]; People vSmith, 155 AD3d 1244, 1246 [2017]).
McCarthy, J.P., Devine, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.