| People v Sydlosky |
| 2020 NY Slip Op 01859 [181 AD3d 1094] |
| March 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Sydlosky, Appellant. |
Del Atwell, East Hampton, for appellant.
Joseph G. Fazzary, District Attorney, Watkins Glen (John C. Tunney of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schuyler County (Morris,J.), rendered August 24, 2017, convicting defendant upon his plea of guilty of the crimeof attempted burglary in the second degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to attemptedburglary in the second degree. Under the terms of the plea agreement, he was to serveone year of interim probation and, upon successful completion, he would be permitted towithdraw his guilty plea and plead guilty to the lesser crime of criminal trespass, forwhich he would be sentenced to two years of probation. If he failed to successfullycomplete the period of interim probation, his original guilty plea would stand and hewould be sentenced to five years of probation. Defendant subsequently admitted toviolating the terms of interim probation, and he was sentenced on his original plea to fiveyears of probation. He appeals.
Initially, defendant contends that his guilty plea was not knowing, voluntary andintelligent because he suffers from mental health problems. This claim, however, has notbeen preserved for our review as the record does not reflect that defendant made anappropriate postallocution motion to withdraw his plea despite having an opportunity todo so before sentencing (seePeople v McClain, 165 AD3d 1345, 1346 [2018]; People v Blackburn, 164 AD3d960, 961 [2018]). Moreover, the narrow exception to the preservation requirement isinapplicable as defendant did not make any statements during the plea allocution or atsentencing that cast doubt upon his guilt or called into question the voluntariness of hisplea (see People v Gumbs,169 AD3d 1119, 1119 [2019], lv denied 33 NY3d 1105 [2019]; People vMcClain, 165 AD3d at 1346). Likewise, defendant's related claim of ineffectiveassistance of counsel, to the extent that it impacted the voluntariness of his plea, is alsounpreserved (see People vReap, 163 AD3d 1287, 1289 [2018], lv denied 32 NY3d 1128 [2018];People v Madison, 104AD3d 1025, 1025 [2013]). Insofar as defendant asserts that counsel was alsoineffective in failing to negotiate an alternative sentence, his claim is foreclosed by hisguilty plea (see People vElder, 173 AD3d 1344, 1346 [2019], lv denied 34 NY3d 930 [2019]; People v McCargo, 170 AD3d1377, 1378 [2019]). Lastly, we have considered defendant's challenge to thesentence and find it to be unavailing.
Egan Jr., J.P., Lynch, Aarons and Colangelo, JJ., concur. Ordered that the judgmentis affirmed.