| People v Greene |
| 2019 NY Slip Op 03112 [171 AD3d 1407] |
| April 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael N. Greene, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered August 24, 2017, convicting defendant upon his plea of guilty of the crime of robbery inthe second degree.
In January 2017, defendant was charged in a four-count indictment with various crimesstemming from allegations that he robbed a pharmacy while displaying what appeared to be gun.In satisfaction of all charges, defendant accepted a plea agreement whereby he pleaded guilty toone count of robbery in the second degree and waived his right to appeal. County Court thereaftersentenced him, in accordance with the terms of the plea agreement, to a prison term of six years,followed by five years of postrelease supervision. Defendant appeals.
Initially, we reject defendant's assertion that his appeal waiver is invalid. The record revealsthat, at the outset of the plea proceeding, defendant was advised that a waiver of the right toappeal was a condition of the plea agreement, and defendant verbalized his understanding of theterms of that agreement (see People vWilliams, 167 AD3d 1084, 1084-1085 [2018], lv denied 32 NY3d 1211 [2019];People v Cherry, 166 AD3d1220, 1221 [2018]). County Court then conveyed to defendant that his right to appeal was"separate and distinct" from the trial-related rights that he was automatically forfeiting bypleading guilty, and the court confirmed defendant's understanding that he was waiving suchright (see People v Lopez, 6 NY3d248, 256 [2006]). The record further reflects that defendant executed a written appeal waiverin open court that reiterated the same, and further recited that defendant had discussed the waiverwith counsel, understood it and agreed to be bound by it (see People v Carter, 166 AD3d 1212, 1213 [2018]; People v Chaney, 160 AD3d 1281,1283 [2018], lv denied 31 NY3d 1146 [2018]). Accordingly, we find that defendant'scombined oral and written waiver of appeal was knowing, intelligent and voluntary (see People v Wood, 161 AD3d1447, 1448 [2018]; People vBaxter, 154 AD3d 1010, 1011 [2017]). In light of the valid appeal waiver, defendant'schallenge to the agreed-upon sentence as harsh and excessive has been foreclosed (see Peoplev Lopez, 6 NY3d at 256; People vWalker, 166 AD3d 1393, 1394 [2018]).
Defendant also appears to challenge the sufficiency of the evidence before the grand jury,arguing that there was no proof that he displayed a weapon or used force. His guilty plea,however, precludes this challenge (seePeople v Busreth, 167 AD3d 1089, 1090 [2018], lv denied 33 NY3d946 [2019]; People v Wilburn, 158 AD3d 894, 894-895 [2018], lvdenied 31 NY3d 1123 [2018]). Although the presence of alleged jurisdictional orconstitutional defects in the grand jury proceeding that implicate the integrity of the process maysurvive a guilty plea and valid waiver of appeal (see People v Hansen, 95 NY2d 227, 232[2000]; People v Robertson, 279 AD2d 711, 712 [2001]), the grand jury minutes here donot disclose any such infirmities (see CPL 210.35 [5]; People v Busreth, 167AD3d at 1090; People v DeAngelo,136 AD3d 1119, 1119-1120 [2016]).
To the extent that defendant challenges the voluntariness of his plea, this argument, as wellas his related ineffective assistance of counsel claim, survive the valid appeal waiver; however,such claims are unpreserved for our review in the absence of an appropriate postallocutionmotion (see People v Moore, 169AD3d 1110, 1112 [2019]; People vRivera, 167 AD3d 1324, 1324 [2018]; People v Norton, 164 AD3d 1502, 1503 [2018], lv denied32 NY3d 1114 [2018]). Moreover, the narrow exception to the preservation requirement was nottriggered by defendant's statements during the plea allocution or sentencing (see People v Pastor, 28 NY3d1089, 1090-1091 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]). The balanceof defendant's ineffective assistance of counsel claim—including his assertions thatcounsel failed to explore potential defenses and coerced him into pleading guilty—involvematters outside of the record that are more appropriately suited for a CPL article 440 motion (see People v Dickerson, 168 AD3d1194, 1195 [2019]; People vMuller, 166 AD3d 1240, 1241 [2018]). Defendant's remaining contentions have beenconsidered and are without merit.
Egan Jr., J.P., Devine and Rumsey, JJ., concur. Ordered that the judgment is affirmed.