| People v Carroll |
| 2019 NY Slip Op 04233 [172 AD3d 1821] |
| May 30, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Javon Carroll, Appellant. |
Noreen McCarthy, Keene Valley, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered July 13, 2016, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the fourth degree (two counts).
In satisfaction of a four-count indictment, defendant agreed to plead guilty to criminal sale ofa controlled substance in the fourth degree (two counts) with a recommended prison term of fouryears upon each conviction followed by three years of postrelease supervision. The contemplatedprison terms would run concurrently with one another but consecutively to the prison term thatdefendant then was serving. Consistent with the terms of the plea agreement, which also requireddefendant to waive his right to appeal, defendant pleaded guilty to the two sale counts, andCounty Court thereafter sentenced defendant as a second felony offender to the recommendedterms of imprisonment. Defendant appeals.
We need not consider the validity of defendant's appeal waiver (see People v Rivera, 167 AD3d1324, 1324 [2018]; People vGuynup, 159 AD3d 1223, 1224 [2018], lv denied 31 NY3d 1082 [2018]), as hischallenge to the voluntariness of his plea and his related ineffective assistance of counsel claim(to the extent that it impacts upon the voluntariness of his plea) survive even a valid appealwaiver but are unpreserved for our review in the absence of an appropriate postallocution motion(see People v Moore, 169 AD3d1110, 1112 [2019], lv denied 33 NY3d 979 [2019]; People v Rivera, 167 AD3d at 1324; People v Spears, 78 AD3d 1380,1380 [2010]). In this regard, "defendant's reliance upon his unsworn statements contained withina postplea letter sent to County Court prior to sentencing, which contradicted his sworn pleaallocution, is unavailing, as said letter neither properly preserved this issue for appeal norconstituted a motion to withdraw his guilty plea" (People v Quell, 166 AD3d 1388, 1389 [2018], lv denied 32NY3d 1208 [2019], citing People vWillard, 159 AD3d 1228, 1229 [2018], lv denied 31 NY3d 1154 [2018]; People v Rayburn, 150 AD3d1553, 1554-1555, 1555 n [2017]). "Moreover, defendant's pro se submission prior tosentencing [was insufficient for preservation purposes] because he was represented by counseland was not entitled to hybrid representation" (People v Horton, 166 AD3d 1226, 1227 [2018] [citation omitted]).Finally, defendant's postplea assertions of innocence were unsworn and otherwiseunsubstantiated and, as such, County Court was under no duty to further inquire prior tosentencing defendant to the recommended terms of imprisonment (see People v Rodriguez, 154 AD3d968, 969 [2017], lv denied 30 NY3d 1108 [2018]; cf. People v Rivera, 167AD3d at 1324; People v Allen, 166AD3d 1210, 1210-1211 [2018], lv denied 32 NY3d 1201 [2019]; People v Bailey, 158 AD3d 948,949 [2018]).
Contrary to defendant's assertion, he did not make any statements on the record that negatedan element of the charged crime, were inconsistent with his guilt or otherwise called intoquestion the voluntariness of his plea and, therefore, the narrow exception to the preservationrequirement was not triggered (see People v Rivera, 167 AD3d at 1324; People vQuell, 166 AD3d at 1389). To the extent that defendant faults counsel for failing to properlyinvestigate his case, conduct more extensive discovery or explore possible defenses, these claimsimplicate matters outside of the record and, as such, are more properly addressed in the contextof a CPL article 440 motion (see People v Moore, 169 AD3d at 1112). Accordingly, thejudgment of conviction is affirmed.
Lynch, J.P., Mulvey, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.