| People v Moore |
| 2019 NY Slip Op 00928 [169 AD3d 1110] |
| February 7, 2019 |
| Appellate Division, Third Department |
[*1](February 7, 2019)
| The People of the State of New York, Respondent, v MalikMoore, Appellant. |
Erin C. Morigerato, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Albany County (Lynch, J.), renderedMay 8, 2014, convicting defendant upon his plea of guilty of the crimes of attempted recklessendangerment in the first degree and attempted criminal possession of a weapon in the seconddegree.
In 2013, defendant was charged in two separate indictments with reckless endangerment in the firstdegree and criminal possession of a weapon in the second degree. The charges stemmed in part froman incident wherein defendant fired a weapon in the direction of two City of Albany police officers.After rejecting three prior plea offers, defendant ultimately agreed to plead guilty to the reduced chargesof attempted reckless endangerment in the first degree and attempted criminal possession of a weaponin the second degree with the understanding that he would be sentenced to a prison term of1
Defendant thereafter pleaded guilty consistent with the terms of the plea agreement, and the matterwas adjourned for sentencing. At sentencing, the People clarified that defendant did not qualify as apredicate felony offender, thereby reducing the minimum period of imprisonment to be imposed uponthe attempted reckless endangerment conviction, as well as the period of postrelease supervision to beimposed upon the weapon conviction. Accordingly, County Court sentenced defendant to a prisonterm of 1 to 3 years upon the attempted reckless endangerment conviction and to the promised prisonterm of seven years upon the weapon conviction followed by three years of postreleasesupervision—said sentences to run concurrently. Defendant appeals.
We affirm. The record reflects that County Court advised defendant that the waiver of the right toappeal was a condition of the plea agreement and explained that such waiver was separate and distinctfrom the trial-related rights that defendant was forfeiting by pleading guilty (see People v Cherry, 166 AD3d 1220,1221 [2018]; People v Koontz, 166AD3d 1215, 1216 [2018]; People vStrack, 166 AD3d 1171, 1172 [2018]). Defendant, in turn, signed a written waiver in opencourt and indicated that he understood its contents and agreed to be bound by its terms (see People v Brown, 163 AD3d 1269,1270 [2018]). "While the better practice would have been for the court to specifically ask defendant ifhe had discussed the appeal waiver with counsel and establish that he had read the written waiverbefore signing it, considering all of the relevant facts and circumstances surrounding the waiver,including defendant's experience, we are satisfied that the oral colloquy, combined with the writtenwaiver, demonstrate his understanding and voluntary waiver of his right to appeal" (People v Gagnon, 153 AD3d 1451,1452 [2017] [internal quotation marks and citations omitted]; see People v Lomax, 161 AD3d 1454, 1455 [2018], lv denied32 NY3d 1113 [2018]). Given the valid appeal waiver, defendant's claim that the sentence imposedwas harsh and excessive is precluded (seePeople v Watkins, 166 AD3d 1239, 1240 [2018]).
To the extent that defendant challenges the voluntariness of his plea, this argument, as well as hisrelated ineffective assistance of counsel claim, survive the appeal waiver but are unpreserved for ourreview absent evidence of an appropriate postallocution motion (see People v Bonafante, 166 AD3d 1228, 1228 [2018]; People v Haverly, 161 AD3d 1483,1484 [2018], lv denied 32 NY3d 938 [2018]; People v Edwards, 160 AD3d 1280, 1281 [2018], lv denied 31NY3d 1147 [2018]). As defendant did not make any statements during his plea allocution that negatedan element of the charged crimes or otherwise called into question the voluntariness of his plea, thenarrow exception to the preservation requirement was not triggered (see People v Aldous, 166 AD3d 1077,1078 [2018], lv denied 32 NY3d 1124 [2018]; People v Haverly, 161 AD3d at1484). The balance of defendant's ineffective assistance of counsel claim, including defendant'sassertion that counsel failed to adequately investigate his case, explore potential defenses or researchhis prior criminal history, involves matters outside of the record that are more appropriately addressedin a CPL article 440 motion (see People vMuller, 166 AD3d 1240, 1241 [2018]; People v Aldous, 166 AD3d at 1079). As tocounsel's failure to insist upon a CPL 400.21 hearing, the People conceded at sentencing that defendantwas not a predicate felon, and defendant's sentence was adjusted accordingly. Counsel otherwisesecured an advantageous plea agreement for defendant. Accordingly, were we to reach this issue, wewould find that defendant was afforded meaningful representation. Defendant's remaining contentions,including those raised in his pro se brief, have been examined and found to be lacking in merit.
Egan Jr., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment is affirmed.