| People v Sabin |
| 2020 NY Slip Op 00649 [179 AD3d 1401] |
| January 30, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v William J. Sabin, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant,and appellant pro se.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Cortland County(Campbell, J.), rendered May 11, 2017, convicting defendant upon his plea of guilty ofthe crime of attempted criminal sale of a controlled substance in the third degree.
Defendant was charged in a three-count indictment with criminal sale of a controlledsubstance in the third degree stemming from three separate sales of cocaine. Afterextensive negotiations, defendant pleaded guilty to a reduced charge of attemptedcriminal sale of a controlled substance in the third degree in satisfaction of the indictmentand other pending felony and misdemeanor charges. As part of the plea agreement,defendant waived his right to appeal, and sentencing was left to the discretion of CountyCourt, which agreed to cap the prison sentence at six years with three years of postreleasesupervision. Thereafter, defendant was sentenced, as a second felony offender, to aprison term of five years, to be followed by three years of postrelease supervision, wasordered to pay restitution of $580 and agreed to the forfeiture of a vehicle and certaincash. Defendant appeals.
We affirm. Defendant's challenge to the appeal waiver lacks merit. The recordreflects that defendant was repeatedly advised during plea negotiations that a waiver ofappeal was a condition of the plea agreement. County Court explained the nature of hisappellate rights and the meaning and consequences of the waiver and, after consultingwith counsel, defendant signed the written waiver of appeal in open court, indicating thathe had discussed the waiver with counsel and understood it. The court did not improperlylump defendant's appellate rights with those rights automatically forfeited by his guiltyplea and, contrary to his claim, the court's explanation and the executed written waivermade clear that the right to appeal was distinct from his other trial-related rights (see People v Sanders, 25 NY3d337, 341 [2015]; People vLopez, 6 NY3d 248, 256 [2006]; People v Boyette, 175 AD3d 751, 752 [2019], lvdenied 34 NY3d 979 [2019]). The court adequately conveyed to defendant that hewould be precluded from raising on appeal most legal issues related to his guilty plea andsentence, while noting that some issues would survive his appeal waiver. The writtenwaiver, which defendant reviewed with counsel, explained this distinction more clearly.Accordingly, we find that defendant's combined oral and written waiver of appeal wasknowing, voluntary and intelligent (see People v Lopez, 6 NY3d at 248; People v Bowden, 177 AD3d1037, 1038 [2019]; compare People v Thomas, 34 NY3d 545,564-565 [2019]). Given the valid appeal waiver,defendant's challenge to the sentence as harsh and excessive is precluded (see People v King, 172 AD3d1763, 1764 [2019]; Peoplev Greene, 171 AD3d 1407, 1408 [2019]).
Although not precluded by his valid appeal waiver, defendant's claim that his guiltyplea was not knowing, voluntary and intelligent has not been preserved for our review, asthe record does not reflect that he made an appropriate postallocution motion despitehaving an opportunity to do so (see CPL 220.60 [3]; People v Conceicao, 26 NY3d375, 381-382 [2015]; People v Morton, 173 AD3d 1464, 1465 [2019], lvdenied 34 NY3d 935 [2019]). Moreover, the exception to the preservation rule isinapplicable, as defendant did not make any statements that negated his guilt or calledinto question the voluntariness of his guilty plea (see People v Lopez, 71 NY2d662, 665-666 [1988]; People v Morton, 173 AD3d at 1465-1466). Defendant'sargument that he was not adequately advised of his Boykin trial rights during theplea allocution (see Boykin v Alabama, 395 US 238, 243 [1969]) is subject topreservation rules (see People v Conceicao, 26 NY3d at 382; People v Small, 166 AD3d1237, 1238 [2018]) and, were we to address it despite the lack of preservation, wewould find that he was adequately advised of and validly waived those rights (seePeople v Conceicao, 26 NY3d at 383; People v Tyrell, 22 NY3d 359, 365 [2013]; People v Mitchell, 166 AD3d1233, 1234 [2018], lv denied 33 NY3d 979 [2019]).
To the extent that defendant's claims of ineffective assistance of counsel impact uponthe voluntariness of his plea, including the arguments raised in his pro se brief, theysurvive the appeal waiver but are similarly unpreserved due to the lack of apostallocution motion (seePeople v Allevato, 170 AD3d 1264, 1265 [2019], lv denied 34 NY3d949 [2019]). Were we to reach this issue, we would find that counsel secured a veryfavorable plea that greatly reduced defendant's sentencing exposure and avoidedpersistent felony offender sentencing, and that nothing in the record casts doubt oncounsel's apparent effectiveness (see People v Jackson, 159 AD3d 1276, 1277 [2018], lvdenied 31 NY3d 1149 [2018]). Further, defendant has not demonstrated "the absenceof strategic or other legitimate explanations" for counsel's decision to proceed withongoing, beneficial plea negotiations rather than moving for suppression and preclusionof certain evidence that the People had not yet turned over pursuant to earlier courtorders, relief that counsel could have pursued if plea negotiations proved unsuccessful(People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks andcitation omitted]; see People vHunter, 175 AD3d 1601, 1604 [2019], lv denied 34 NY3d 1078 [2019]). We have examined defendant's remaining contentions, includingthose raised in his pro se brief, and find that they are without merit.
Egan Jr., J.P., Clark, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.