| People v Morton |
| 2019 NY Slip Op 05022 [173 AD3d 1464] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ahmad Morton, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered December 14, 2016, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the second degree.
In satisfaction of a one-count indictment and other pending charges, defendant pleaded guiltyto attempted criminal possession of a weapon in the second degree and waived his right toappeal, both orally and in writing. In accordance with the terms of the plea agreement, he wassentenced as a second felony offender to seven years in prison, followed by five years ofpostrelease supervision, to run concurrently with a sentence imposed in connection with hisviolation of probation (People v Morton, 173 AD3d 1445 [2019] [appeal No. 108786, decided herewith]). Defendant appeals.
Initially, defendant's challenge to the validity of his appeal waiver is without merit. Duringthe plea colloquy, County Court explained to defendant that, notwithstanding the automaticforfeiture of his trial-related rights resulting from his guilty plea, defendant ordinarily retained hisright to appeal his case to a higher court (see People v Dickerson, 168 AD3d 1194, 1194 [2019]; People v Smith, 157 AD3d 1059,1060 [2018], lv denied 31 NY3d 987 [2018]). This adequately conveyed to defendant theseparate and distinct nature of his right to appeal (see People v Tucker, 164 AD3d 948, 949 [2018]). County Courtwent on to explain that the waiver of appeal was a condition of his plea agreement, whichdefendant indicated he understood, and then, after consulting with counsel, defendant executed awritten waiver of appeal in open court, which he indicated he signed and understood (see People v McDonald, 165 AD3d1327, 1327-1328 [2018], lv denied 32 NY3d 1175 [2019]; People v Venable, 161 AD3d1315, 1315 [2018], lv denied 31 NY3d 1154 [2018]). In these circumstances, wefind that defendant knowingly, intelligently and voluntarily waived his right to appeal (seePeople v Dickerson, 168 AD3d at 1194; People v McDonald, 165 AD3d at 1328).Accordingly, defendant's challenge to the severity of the promised sentence is precluded (seePeople v McDonald, 165 AD3d at 1328; People v Velez, 158 AD3d 952, 952-953 [2018]).
Although defendant's challenge to the voluntariness of his plea survives his appeal waiver,this claim has not been preserved for our review as the record does not disclose that he made anappropriate postallocution motion despite having an opportunity to do so before sentencing(see People v Dickerson, 168 AD3d at 1194-1195; People v Mais, 168 AD3d 1142, 1143 [2019]). Moreover, theexception to the preservation rule is inapplicable as defendant did not make any statements thatnegated his guilt or called into question the voluntariness of his guilty plea (see People vLopez, 71 NY2d 662, 665-666 [1988]; People v Bonfante, 167 AD3d 1160, 1160 [2018], lv denied32 NY3d 1202 [2019]). Defendant's generalized claim that he was denied the effective assistanceof counsel—to the extent that it impacted the voluntariness of his guilty plea—isalso unpreserved for the same reason (see People v Dickerson, 168 AD3d at 1195;People v Mais, 168 AD3d at 1143).
Lastly, defendant maintains that his conviction should be vacated because the certificate ofconviction and the uniform sentence and commitment form erroneously state that he wasconvicted of criminal possession of a weapon in the second degree. The People concede and therecord confirms that the subject documents contain this error. However, rather than vacating theconviction, the proper remedy is to remit the matter to County Court for correction of the error onboth forms (see People v Payne, 148AD3d 1226, 1227-1228 [2017], lv denied 29 NY3d 1084 [2017]; People v Butler, 134 AD3d 1349,1350 [2015], lv denied 27 NY3d 963 [2016]).
Garry, P.J., Clark, Mulvey and Devine, JJ., concur. Ordered that the judgment is affirmed,and matter remitted for entry of an amended uniform sentence and commitment form and anamended certificate of conviction.