| People v McCargo |
| 2019 NY Slip Op 02179 [170 AD3d 1377] |
| March 21, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Deanna McCargo, Appellant. |
Michael C. Ross, Bloomingburg, for appellant.
Letitia James, Attorney General, New York City (Margaret A. Cieprisz of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered March 16, 2017, convicting defendant upon her plea of guilty of the crime of attemptedcriminal possession of a controlled substance in the third degree.
Defendant and 24 codefendants were charged in a 340-count sealed indictment with variouscrimes arising from their participation in a drug distribution network. In satisfaction of the fivecrimes with which defendant was charged, she pleaded guilty to attempted criminal possession ofa controlled substance in the third degree and waived her right to appeal, both orally and inwriting. As part of the plea agreement, defendant agreed to cooperate with authorities in theinvestigation and prosecution of her codefendants. The plea agreement also required her to avoidbeing arrested or committing any additional crimes prior to sentencing and to provide truthfulinformation during her probation interview. In exchange for complying with the terms of the pleaagreement, defendant was to be sentenced as a predicate felon to no more than four years inprison, followed by three years of postrelease supervision.
At the next court appearance, County Court adjourned sentencing, released defendant toprobation supervision and had defendant sign a written Parker admonishment, as well asa written document specifying the conditions of her probationary release. At that time, CountyCourt advised defendant that if she violated the terms of the plea agreement, which includedreturning to court as directed, she could receive a sentence of up to eight years in prison,followed by three years of postrelease supervision. Sentencing was subsequently adjourned anumber of times to afford defendant the opportunity to provide further cooperation. Whendefendant finally appeared in court for sentencing, she requested an adjournment to enable her tomake child care arrangements during the period of her incarceration. County Court denied herrequest and, during a brief recess before sentence was imposed, defendant abruptly left thecourthouse and failed to return. A warrant was issued for her arrest and she was apprehended 14months later, at which time she was brought before the court for sentencing. Upon finding thatdefendant failed to comply with the terms of the plea agreement, County Court sentenced her toseven years in prison followed by three years of postrelease supervision. Defendant nowappeals.
Initially, defendant contends that she was denied the effective assistance of counsel due toher counsel's failure to obtain discovery, make appropriate motions, request hearings, reviewlaboratory reports and challenge the imposition of the enhanced sentence. This claim, however, isforeclosed by defendant's knowing, voluntary and intelligent guilty plea (see People v Milligan, 165 AD3d1347, 1347-1348 [2018]; People vRutigliano, 159 AD3d 1280, 1281 [2018], lv denied 31 NY3d 1121 [2018]). Thealleged deficiencies of which defendant complains did not impact the voluntariness of her guiltyplea and, even if they did, her claim is unpreserved as the record does not disclose that she madean appropriate postallocution motion (see People v Jawan, 165 AD3d 1350, 1351 [2018], lvdenied 32 NY3d 1173 [2019]; People v Gorman, 165 AD3d 1349, 1350 [2018], lv denied32 NY3d 1125 [2018]). Furthermore, the narrow exception to the preservation requirement isinapplicable as defendant did not make any statements during the plea colloquy that cast doubtupon her guilt or called into question the voluntariness of her plea (see People v Milligan,165 AD3d at 1347; People vHaverly, 161 AD3d 1483, 1484 [2018], lv denied 32 NY3d 938 [2018]).
Contrary to defendant's claim, her appeal waiver is valid. The record discloses that CountyCourt advised defendant that the right to appeal was separate and distinct from the other rightsthat she was forfeiting by pleading guilty, ascertained that she understood its ramifications andhad her execute a written waiver in open court after conferring with counsel. Notably, the writtenwaiver specifically stated that it included any issues related to the severity of the sentence. Giventhe valid appeal waiver, appellate review of the severity of the sentence is precluded (see People v Martinez, 166 AD3d1376, 1377 [2018], lv denied 32 NY3d 1207 [2019]; People v Watkins, 166 AD3d1239, 1240 [2018]).
Lastly, defendant contends that County Court erroneously found that she violated her releaseconditions resulting in the imposition of an enhanced sentence and that it engaged inunreasonable delay in imposing sentence. These claims, however, have also not been preservedfor our review given defendant's failure to interpose objections before County Court or makeappropriate motions raising these issues (see CPL 470.05 [2]; People v Russell, 143 AD3d 1188,1189 [2016]; People v Dissottle, 68AD3d 1542, 1543 [2009], lv denied 14 NY3d 799 [2010]).
Egan Jr., J.P., Clark, Mulvey and Devine, JJ., concur. Ordered that the judgment isaffirmed.