| People v Brassard |
| 2019 NY Slip Op 06823 [175 AD3d 1723] |
| September 26, 2019 |
| Appellate Division, Third Department |
[*1](September 26, 2019)
| The People of the State of New York,Respondent, v Shin Ping Brassard, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered May 9, 2016, convicting defendant upon her plea of guilty of the crime of sexual abusein the first degree.
Defendant waived indictment, pleaded guilty to a superior court information charging herwith sexual abuse in the first degree and was required to waive the right to appeal. County Courtthereafter imposed the agreed-upon prison sentence of seven years, to be followed by 10 years ofpostrelease supervision. Defendant appeals.
We affirm. Contrary to defendant's contention, the record reflects that her waiver of the rightto appeal was valid. Defendant was advised during the plea colloquy that a waiver of the right toappeal was a condition of the plea agreement. County Court thereafter explained the separate anddistinct nature of the waiver, which defendant acknowledged that she understood. Defendant thenconfirmed that counsel had explained the waiver. Accordingly, we find that defendantknowingly, intelligently and voluntarily waived her right to appeal (see People v Lopez, 6 NY3d 248,256 [2006]; People v Peryea, 169AD3d 1120, 1120 [2019], lv denied 33 NY3d 980 [2019]). Defendant's valid appealwaiver precludes her challenge to the severity of her sentence (see People v Dorsey, 170 AD3d1325, 1326 [2019], lv denied 33 NY3d 1068 [2019]; People v Moore, 169 AD3d 1110,1112 [2019], lv denied 33 NY3d 979 [2019]).
To the extent that defendant's claim of ineffective assistance of counsel impacts thevoluntariness of her plea, it survives her appeal waiver but is unpreserved for our review,inasmuch as the record does not reflect that she made an appropriate postallocution motion (see People v Danielson, 170 AD3d1430, 1432 [2019], lv denied 33 NY3d 1030 [2019]; People v Norton, 164 AD3d 1502,1503 [2018], lv denied 32 NY3d 1114 [2018]). Although defendant stated during the pleacolloquy that she was not satisfied with counsel's representation because counsel had not spentenough time with her discussing her case, County Court then recessed the proceeding to allowdefendant to speak further with counsel. Following the recess, the court confirmed withdefendant that she had been provided enough time to discuss the matter with counsel, that sheunderstood the ramifications of the plea agreement and that she was satisfied with counsel'srepresentation. Insofar as County Court fulfilled its obligation to inquire further regarding theknowing, intelligent and voluntary nature of defendant's plea, the narrow exception to thepreservation requirement is inapplicable (see People v Goodell, 104 AD3d 1026, 1026 [2013], lvdenied 22 NY3d 1138 [2014]; People v Ferro, 101 AD3d 1243, 1244 [2012], lv denied 20NY3d 1098 [2013]). Defendant's assertions that counsel failed to explore a viable defense anddid not pursue certain motions involve matters outside of the record and are more properly thesubject of a CPL article 440 motion (seePeople v Retell, 164 AD3d 1501, 1502 [2018]; People v Griffin, 134 AD3d 1228, 1230 [2015], lv denied27 NY3d 1132 [2016]).
Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.