| People v Martinez |
| 2018 NY Slip Op 08196 [166 AD3d 1376] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1](November 29, 2018)
| The People of the State of New York,Respondent, v Hector Martinez, Appellant. |
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Daniel Young, Law Intern), forrespondent.
Rumsey, J.
Appeal from a judgment of the Supreme Court (Milano, J.), rendered May 15, 2015 in Schenectady County, convicting defendant upon his plea of guilty of thecrimes of criminal possession of a controlled substance in the third degree, criminalcontempt in the second degree and criminal sale of a controlled substance in the thirddegree.
Defendant pleaded guilty to criminal contempt in the second degree, criminalpossession of a controlled substance in the third degree and criminal sale of a controlledsubstance in the third degree in full satisfaction of three indictments that had beenconsolidated. He waived his right to appeal and, consistent with the plea agreement,County Court sentenced defendant, as a second felony offender, to an aggregate prisonterm of six years to be followed by three years of postrelease supervision. Defendantappeals.
Initially, defendant's combined oral and written waiver of appeal is valid because therecord reflects that County Court properly explained the separate and distinct nature ofthe right to appeal from the trial-related rights that are automatically forfeited by pleadingguilty and ascertained that defendant had discussed the appeal waiver with counsel andunderstood it before he signed the written waiver (see People v Wood, 161 AD3d 1447, 1448 [2018]; People v Chaney, 160 AD3d1281, 1282-1283 [2018], lv denied 31 NY3d 1146 [2018]). Defendant'sclaim that his plea was not knowing, voluntary and intelligent survives a valid appealwaiver, but is unpreserved for our review because the record does not indicate that hemade an appropriate postallocution motion (see People v Jackson, 163 AD3d 1360, 1360-1361 [2018];People v Wood, 161 AD3d at 1449), and the narrow exception to thepreservation requirement is inapplicable as defendant did not make any statements duringthe plea colloquy that cast doubt upon his guilt or the voluntariness of his plea (seePeople v Jackson, 163 AD3d at 1361; People v Wood, 161 AD3d at 1449).Further, defendant's valid appeal waiver forecloses him from [*2]challenging the agreed-upon sentence as harsh andexcessive (see People vNichols, 155 AD3d 1186, 1187 [2017]).
Defendant's contention that he was denied the effective assistance of counsel bycounsel's failure to adequately explain the plea agreement survives the appeal waiver tothe extent that it impacts the voluntariness of his plea, but is unpreserved for our reviewbecause the record does not reflect that he made an appropriate postallocution motion (see People v White, 164 AD3d959, 960 [2018]; People vRobinson, 155 AD3d 1252, 1253 [2017], lv denied 30 NY3d 1119[2018]). To the extent that defendant's contention in this respect involves matters outsideof the record, it is more appropriately raised in a motion pursuant to CPL article 440 (see People v Pickett, 128AD3d 1275, 1276 [2015], lv denied 26 NY3d 933 [2015]).
McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur. Ordered that the judgmentis affirmed.