| People v Lasher |
| 2018 NY Slip Op 07799 [166 AD3d 1242] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Stacy Lasher, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney (Tracey A. Brunecz of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered March 28, 2017, convicting defendant upon his plea of guiltyof the crime of burglary in the second degree.
Defendant pleaded guilty to burglary in the second degree in full satisfaction ofvarious charges contained in two indictments and waived the right to appeal. CountyCourt thereafter sentenced him, as a second felony offender, to the agreed-upon prisonterm of eight years, to be followed by five years of postrelease supervision. Defendantappeals.
Initially, to the extent that defendant argues that the People failed to provide propernotice of the grand jury proceedings, such claim was forfeited by his guilty plea (seePeople v Wheeler, 176 AD2d 1133, 1134 [1991], lv denied 79 NY2d 924[1992]; People v Kehn, 132 AD2d 778, 779 [1987], lv denied 70 NY2d800 [1987]). Defendant's ineffective assistance of counsel claim, based upon hiscounsel's failure to object to a lack of a preliminary hearing on the charges leading to thefirst indictment, was also forfeited by his guilty plea, as it does not directly involve theplea bargaining process (see People v Petgen, 55 NY2d 529, 535 n 3 [1982]; People v Terenzi, 57 AD3d1228, 1229 [2008], lv denied 12 NY3d 822 [2009]). Defendant alsocontends that he was deprived of the effective assistance of counsel by counsel's failureto secure his testimony before the grand jury. "[F]ailure of defense counsel to facilitate[a] defendant's testimony before the grand jury does not, per se, amount to the denial ofeffective assistance of counsel" (People v Simmons, 10 NY3d 946, 949 [2008]; accord People v Ronk, 159AD3d 1129, 1130 [2018], lv denied 31 NY3d 1086 [2018]; People v Hogan, 26 NY3d779, 787 [2016]). Moreover, defendant has not demonstrated " 'that he wasprejudiced by the failure of his attorney to effectuate his intentions or appearance beforethe grand jury and there is no claim that had he testified in the grand jury, the outcomewould have been different' " (People v Lasher, 74 AD3d 1474, 1476 [2010] [bracketsand ellipsis omitted], lv denied 15 NY3d 894 [2010], quoting People vSimmons, 10 NY3d at 949; see People v Ronk, 159 AD3d at1130).
[*2] Defendant's contention that hisplea was not knowing, intelligent and voluntary is unpreserved for our review as therecord does not reflect that he made an appropriate postallocution motion (see People v Conley, 161AD3d 1486, 1486-1487 [2018]; People v Busch-Scardino, 158 AD3d 988, 988 [2018]). Thenarrow exception to the preservation rule is not triggered here as defendant did not makeany statements during the plea colloquy that cast doubt upon his guilt or called intoquestion the voluntariness of the plea (see People v Suits, 158 AD3d 949, 950-951 [2018]; People v Mathayo, 155 AD3d1090, 1091 [2017], lv denied 30 NY3d 1107 [2018]). Finally, defendant'sclaim that his sentence is harsh and excessive is precluded by his unchallenged appealwaiver (see People vFairweather, 147 AD3d 1153, 1154 [2017], lv denied 29 NY3d 1031[2017]; People v Smalls,128 AD3d 1281, 1282 [2015], lv denied 27 NY3d 1006 [2016]).
Lynch, Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.