| People v Snare |
| 2019 NY Slip Op 05809 [174 AD3d 1222] |
| July 25, 2019 |
| Appellate Division, Third Department |
[*1](July 25, 2019)
| The People of the State of New York,Respondent, v Mark Snare, Appellant. |
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the Supreme Court (Milano, J.),rendered October 27, 2015 in Schenectady County, convicting defendant upon his plea of guilty of the crime of burglaryin the first degree.
In full satisfaction of a seven-count indictment and potential future charges brought againstdefendant for any prior burglaries that he might have allegedly committed in Schenectady Countybetween March 10, 2014 and January 6, 2015, defendant pleaded guilty to burglary in the firstdegree and executed a waiver of the right to appeal, orally and in writing. Consistent with theterms of the plea agreement, defendant was sentenced, as a persistent violent felony offender, to aprison term of 20 years to life. Defendant appeals.
We affirm. The record reflects that, at the outset of the plea proceeding, County Courtadvised defendant that the waiver of the right to appeal was a condition of the plea agreement,and defendant acknowledged his understanding of the plea agreement and its terms (see People v Cherry, 166 AD3d1220, 1221 [2018]; People vCharles, 163 AD3d 1362, 1362 [2018], lv denied 32 NY3d 1063 [2018]; People v Gilbert, 145 AD3d 1196,1196 [2016], lv denied 28 NY3d 1184 [2017]). County Court then advised defendant thathis right to appeal was "separate and apart" from the trial-related rights automatically forfeited byhis guilty plea, and defendant acknowledged that he understood the nature of the waiver and thathe was voluntarily waiving his right to appeal the conviction and agreed-upon sentence (see People v Lopez, 6 NY3d 248,256 [2006]; People v Rogers, 162AD3d 1410, 1410 [2018]; People vTucker, 161 AD3d 1481, 1482 [2018], lv denied 31 NY3d 1153 [2018]; People v Stein, 161 AD3d 1389,1390 [2018]). Defendant, after consulting with counsel, also signed a written waiver of appeal inopen court—which adequately described the nature and scope of the appellate rights beingwaived and stated, among other things, that defendant was waiving his right to appeal inconsideration of the plea agreement—and County Court confirmed that he had noquestions about the written waiver (seePeople v Johnson, 170 AD3d 1274, 1275 [2019]; People v Watkins, 166 AD3d 1239, 1240 [2018], lv denied33 NY3d 955 [2019]; People v Stein, 161 AD3d at 1390). Accordingly, we find thatdefendant's combined oral and written waiver of appeal was knowing, intelligent and voluntary(see People v Cherry, 166 AD3d at 1221; People v Turner, 158 AD3d 892, 892 [2018]). Given the validappeal waiver, defendant's claim that the agreed-upon sentence imposed was harsh and excessiveis precluded (see People vPacherille, 25 NY3d 1021, 1023 [2015]; People v Lopez, 6 NY3d at 256; People v Douglas, 168 AD3d1285, 1286 [2019]; People vBridge, 166 AD3d 1168, 1169 [2018], lv denied 32 NY3d 1124 [2018]).
Finally, although defendant's claim of ineffective assistance of counsel survives the validappeal waiver because it impacts the voluntariness of his plea (see People v Danielson, 170 AD3d1430, 1431 [2019], lv denied 33 NY3d 1030 [2019]; People v Johnson, 170AD3d at 1275; People v Taft, 169AD3d 1266, 1267 [2019]), such challenge is unpreserved for our review in the absence of anappropriate postallocution motion. To the extent that defendant alleges that counsel failed toadequately explain the terms of the plea agreement with him, this claim is based upon factsoutside the record and is more properly the subject of a CPL article 440 motion (see People v Hackett, 167 AD3d1090, 1095 [2018]; People vTrimm, 129 AD3d 1215, 1216 [2015]; People v Keaton, 122 AD3d 954, 955 [2014], lv denied 24NY3d 1220 [2015]).
Lynch, Clark, Devine and Aarons, JJ., concur. Ordered that the judgment is affirmed.