| People v White |
| 2019 NY Slip Op 04234 [172 AD3d 1822] |
| May 30, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Quennel White, Appellant. |
Erin C. Morigerato, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered January 10, 2017, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree.
Defendant was charged in a four-count indictment with various drug-related offenses. Aftertwice rejecting plea offers from the People, defendant ultimately agreed to pleadguilty—in full satisfaction of the indictment—to one count of criminal possessionof a controlled substance in the third degree with the understanding that he would besentenced—as a second felony offender—to a prison term of 3
We affirm. Defendant's challenge to the validity of his waiver of the right to appeal isunavailing. Defendant was aware that an appeal waiver was a condition of his plea agreement,and County Court explained that such waiver was separate and distinct from the trial-relatedrights that defendant was forfeiting by pleading guilty (see People v Moore, 169 AD3d 1110, 1111 [2019], lvdenied 33 NY3d 979 [2019]; People vMcDonald, 165 AD3d 1327, 1327 [2018], lv denied 32 NY3d 1175 [2019]; People v Chaney, 160 AD3d 1281,1282-1283 [2018], lv denied 31 NY3d 1146 [2018]). After conferring with counsel,defendant executed a written waiver in open court and, in response to County Court'squestioning, assured the court that he had been afforded sufficient time to review the waiver withcounsel, understood the contents of the waiver and had no questions relative thereto (see People v Sahler, 168 AD3d1313, 1314 [2019]; People vMateo, 166 AD3d 1246, 1247 [2018], lv denied 32 NY3d 1207 [2019]; People v Garcia, 164 AD3d 958,958 [2018], lv denied 32 NY3d 1003 [2018]). Under these circumstances, we find thatdefendant knowingly, intelligently and voluntarily waived his right to appeal. In light of the validwaiver, defendant's argument regarding the perceived severity of the agreed-upon sentence isprecluded (see People v Freeman,169 AD3d 1115, 1116 [2019]; People v Chapman, 168 AD3d 1315, 1316 [2019]).
Although defendant's challenge to the voluntariness of his plea and his ineffective assistanceof counsel claim—to the extent that it impacts the voluntariness of hisplea—survive the valid appeal waiver, these issues are unpreserved for our review, as therecord does not reflect that defendant made an appropriate postallocution motion—despitehaving ample opportunity to do so prior to sentencing (see People v Prince, 170 AD3d 1380, 1381 [2019]; People v Johnson, 170 AD3d1274, 1275 [2019]; People vTaft, 169 AD3d 1266, 1267 [2019]). As defendant did not make any statements thatnegated an element of the crime to which he pleaded guilty, were inconsistent with his guilt orotherwise called into question the voluntariness of his plea, the narrow exception to thepreservation requirement was not triggered (see People v Freeman, 169 AD3d at 1116; People v Rivera, 167 AD3d 1324,1324 [2018]; People v White, 157AD3d 1128, 1129 [2018], lv denied 31 NY3d 1018 [2018]). In any event, CountyCourt's misstatement as to defendant's sentencing exposure was corrected on the record well inadvance of defendant's plea, and such misstatement—standing alone—would nothave rendered defendant's plea involuntary (see People v Garcia, 92 NY2d 869, 870[1998]; People v DePerno, 148AD3d 1463, 1464 [2017], lv denied 29 NY3d 1030 [2017]). The balance ofdefendant's ineffective assistance of counsel claim, including his assertion that counsel failed toproperly investigate his case, explore potential defenses or research his prior criminal history,implicates matters outside of the record that are more properly pursued in the context of a CPLarticle 440 motion (see People v Moore, 169 AD3d at 1112; People v Norton, 164 AD3d 1502,1503-1504 [2018], lv denied 32 NY3d 1114 [2018]).
Finally, defendant's assertion that County Court failed to comply with the procedures setforth in CPL 400.21 prior to sentencing him as a second felony offender survives the valid appealwaiver because "it implicates the legality of the sentence imposed" (People v Quinones, 162 AD3d1402, 1403 [2018]; see People vHartfield, 151 AD3d 1116, 1118 [2017], lv denied 29 NY3d 1127 [2017]). Thatsaid, even assuming that this issue has been preserved for our review, we find it to be lacking inmerit. The crux of defendant's argument on this point is that he should have been accordedyouthful offender status upon his 2006 felony conviction. Defense counsel correctly noted atsentencing, however, that such an adjudication would have been discretionary (see CPL720.20), and defendant, who had been provided with a copy of the predicate felony statement,"was given an opportunity to be heard and admitted that he had been previously convicted asdescribed [therein]" (People vMorse, 111 AD3d 1161, 1161 [2013], lv denied 23 NY3d 1040 [2014]; see People v Gathers, 106 AD3d1333, 1334 [2013], lv denied 21 NY3d 1073 [2013]). Accordingly, we are satisfiedthat County Court complied with the statutory procedures in sentencing defendant as a secondfelony offender. Defendant's remaining arguments, to the extent not specifically addressed, havebeen examined and found to be lacking in merit.
Egan Jr., J.P., Lynch, Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.