| People v Dickerson |
| 2019 NY Slip Op 00166 [168 AD3d 1194] |
| January 10, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shaleek Dickerson, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Devine, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered February 2,2017 in Albany County, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a controlled substance in the third degree.
In June 2016, defendant was charged by indictment with criminal sale of a controlledsubstance in the third degree. Pursuant to a negotiated plea agreement, defendant pleaded guiltyto attempted criminal sale of a controlled substance in the third degree in satisfaction of theabove charge and other pending possession charges and waived his right to appeal. In accordancewith the plea agreement, Supreme Court sentenced defendant, a second felony offender, to aprison term of three years to be followed by two years of postrelease supervision. Defendantappeals, and we now affirm.
Initially, we reject defendant's contention that his waiver of the right to appeal was invalid.During the plea colloquy, Supreme Court advised defendant that a waiver of appeal was acondition of the plea agreement and explained to him that he ordinarily retained the right toappeal and that the waiver was separate and distinct from the trial-related rights that he wasforfeiting by pleading guilty (see Peoplev McDonald, 165 AD3d 1327, 1327 [2018]; People v Chaney, 160 AD3d 1281, 1282-1283 [2018], lvdenied 31 NY3d 1146 [2018]). Defendant confirmed that he understood and then executed awritten waiver in open court after consulting with counsel (see People v Venable, 161 AD3d 1315, 1315 [2018], lvdenied 31 NY3d 1154 [2018]; People v Smith, 157 AD3d 1059, 1059 [2018], lv denied 31NY3d 987 [2018]). Under these circumstances, we find that defendant knowingly, intelligentlyand voluntarily waived his right to appeal (see People v Williams, 163 AD3d 1172, 1172-1173 [2018], lvdenied 32 NY3d 1009 [2018]; People v Savage, 158 AD3d 854, 855 [2018]). Accordingly,defendant's challenge to the severity of the agreed-upon sentence imposed is precluded (see People v Lew, 165 AD3d1322, 1322 [2018]; People vVelez, 158 AD3d 952, 952-953 [2018]).
Defendant's challenge to the voluntariness of his plea is not precluded by his appeal waiver,but it is unpreserved for our review as the record does not reflect that he made an appropriatepostallocution motion despite having had ample opportunity to do so prior to sentencing (see People v Milligan, 165 AD3d1347, 1347 [2018]; People vGorman, 165 AD3d 1349, 1349 [2018]), and the narrow exception to the preservationrequirement is inapplicable (see Peoplev Evans, 156 AD3d 1246, 1247 [2017]; People v Tetreault, 152 AD3d 1081, 1082 [2017], lv denied30 NY3d 984 [2017]). To the limited extent that defendant's ineffective assistance of counselclaim impacts upon the voluntariness of his plea and survives his appeal waiver, it is similarlyunpreserved (see People v Norton,164 AD3d 1502, 1503 [2018], lv denied 32 NY3d 1114 [2018]; People vHaverly, 161 AD3d 1483, 1484 [2018], lv denied 32 NY3d 938 [2018]). In anycase, defendant's claim that defense counsel failed to explore potential defenses implicatesmatters outside of the record and is more properly addressed in the context of a CPL article 440motion (see People v Retell, 164AD3d 1501, 1502 [2018]; People vBurks, 163 AD3d 1286, 1287 n [2018], lv denied 32 NY3d 1063 [2018]).
Defendant's remaining contentions have been considered and are without merit.
Lynch, J.P., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.