| People v Martin |
| 2020 NY Slip Op 00644 [179 AD3d 1385] |
| January 30, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Khalik Martin, Appellant. |
Khalik Martin, Malone, appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedApril 12, 2017 in Schenectady County, convicting defendant upon his plea of guilty ofthe crime of attempted assault in the first degree.
In satisfaction of a multicount indictment, defendant pleaded guilty to attemptedassault in the first degree and waived his right to appeal. Supreme Court sentenceddefendant in accordance with the terms of the plea agreement to a prison term of7
Initially, we find that defendant's waiver of the right to appeal is valid. The recordclearly reflects that defendant was advised that the waiver of appeal was a condition ofthe plea agreement, and defendant agreed to such condition. The record establishes thatSupreme Court explained to defendant that ordinarily he would have the right to appealhis conviction and sentence, but, as a condition of the plea agreement, he was required towaive that right. Defendant then executed a written appeal waiver in open court, whichhe reviewed with counsel and acknowledged that he had read and understood. Althoughthe court did not specifically use the language "separate and distinct" to explaindefendant's appellate rights, no particular litany or catechism is required during theallocution, and we find that the record reflects that the court sufficiently distinguisheddefendant's right to appeal from the trial-related rights forfeited by the guilty plea (see People v Danielson, 170AD3d 1430, 1431 [2019], lv denied 33 NY3d 1030 [2019], certdenied 589 US — [2019]; People v Douglas, 168 AD3d 1285, 1285-1286 [2019]).The court further ensured during the colloquy that, notwithstanding the overbroadlanguage of the written waiver, "the counseled defendant understood the distinction thatsome appellate review survived" (People v Thomas, 34 NY3d 545, 561 [2019]). Upon review, we are satisfied thatdefendant knowingly, voluntarily and intelligently waived his right to appeal (see People v Womack, 172AD3d 1819, 1820 [2019], lv denied 33 NY3d 1110 [2019]; People v Walker, 166 AD3d1393, 1393-1394 [2018]). Accordingly, the valid appeal waiver precludesdefendant's challenges to the factual sufficiency of the plea allocution (see People vWomack, 172 AD3d at 1821; People v McDonald, 165 AD3d 1327, 1328 [2018], lvdenied 32 NY3d 1175 [2019]) and the harshness of the sentence imposed (see People v Ward, 171 AD3d1312, 1314 [2019], lv denied 33 NY3d 1074 [2019]).
Although not precluded by the appeal waiver, defendant's challenge to thevoluntariness of the plea is unpreserved for our review as the record does not reflect thatdefendant made an appropriate postallocution motion (see People v Pittman, 157AD3d 1130, 1131 [2018], lv denied 31 NY3d 1085 [2018]; People v Lloyd, 142 AD3d1250, 1251 [2016], lv denied 28 NY3d 1073 [2016]). Further, the narrowexception to the preservation rule is inapplicable. Although defendant initially indicatedthat he did not intend to cause serious physical injury to the victim, thereby negating anessential element of the crime, Supreme Court explained the definition of seriousphysical injury and satisfied its duty of further inquiry, after which defendant admittedthat he intended to cause serious physical injury to the victim (see People vDanielson, 170 AD3d at 1432; People v Howe, 164 AD3d 951, 952 [2018], lvdenied 32 NY3d 1112 [2018]; People v Reap, 163 AD3d 1287, 1288 [2018], lvdenied 32 NY3d 1128 [2018]). Defendant's challenge to the effective assistance ofcounsel, to the extent that it impacts the voluntariness of the plea, is also unpreserved (see People v Major, 176 AD3d1257, 1258 [2019], lv denied 34 NY3d 1017 [2019]; People v Snare, 174 AD3d1222, 1223 [2019], lv denied 34 NY3d 984 [2019]). Further, defendant'schallenge to the sufficiency of the evidence before the grand jury is not jurisdictional innature and is foreclosed by his plea of guilty (see People v Guerrero, 28 NY3d 110, 116 [2016]; People v Hunter, 175 AD3d1601, 1602 [2019], lv denied 34 NY3d 1078 [2019]; People v McDonald, 165 AD3d at 1328).
Egan Jr., J.P., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.