| People v Steele |
| 2020 NY Slip Op 01524 [181 AD3d 972] |
| March 5, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Torrence Steele, Also Known as Mo,Appellant. |
Amanda FiggsGanter, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered August 23, 2017, convicting defendant upon his plea of guiltyof the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant was charged in an indictment with various drug-related crimes as a resultof his sale of cocaine to an undercover police informant. He was represented in thecriminal action by counsel from the Public Defender's office. During the course ofdiscovery, the People disclosed that "one of the People's primary witnesses ha[d]previously been represented by the [P]ublic [D]efender." Thereafter, defendant pleadedguilty to attempted criminal sale of a controlled substance in the third degree insatisfaction of the charges contained in the indictment. He also waived his right toappeal. In accordance with the terms of the plea agreement, defendant was sentenced as asecond felony drug offender with a violent predicate to four years in prison, followed bytwo years of postrelease supervision. Defendant appeals.
Defendant contends that he was denied the effective assistance of counsel becausehis attorney did not inform him of the existence of a potential conflict of interest prior tothe entry of his guilty plea, which impacted its voluntariness. This claim, however, isunpreserved for our review as the record does not reflect that defendant made anappropriate postallocution motion (see People v Patterson, 177 AD3d 1027, 1028 [2019],lv denied 34 NY3d 1131 [2020]; People vHarris, 82 AD3d 1449, 1449 [2011], lv denied 17 NY3d 953[2011]).[FN*] Tothe extent that defendant also maintains that counsel was ineffective for failing to file anapplication requesting judicial diversion to a substance abuse treatmentprogram—a claim that does not implicate the voluntariness of the plea—itis precluded by defendant's unchallenged appeal waiver (see People v Major, 176 AD3d1257, 1258 [2019], lv denied 34 NY3d 1017 [2019]).
Defendant further asserts that, due to counsel's ineffectiveness, his guilty plea wasnot knowing, voluntary and intelligent. This claim, however, is similarly unpreservedgiven the absence of a postallocution motion (see People v Griffin, 177 AD3d 1039, 1040 [2019], lvdenied 34 NY3d 1078 [2019]; People v Hunt, 176 AD3d 1253, 1254 [2019]).Furthermore, defendant is precluded by his unchallenged appeal waiver from contestingthe severity of the sentence (seePeople v Ray, 178 AD3d 1128, 1128 [2019]; People v Perez, 171 AD3d1309, 1309-1310 [2019]).
Garry, P.J., Clark, Mulvey and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent thatdefendant's claim is based on evidence outside the record, it is more properly the subjectof a CPL article 440 motion (see People v Patterson, 177 AD3d at 1028; People v Snare, 174 AD3d1222, 1223 [2019], lv denied 34 NY3d 984 [2019]).