| People v Weidenheimer |
| 2020 NY Slip Op 01861 [181 AD3d 1096] |
| March 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Weidenheimer,Appellant. |
Erin C. Morigerato, Albany, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Franklin County(Richards, J.), rendered November 29, 2017, convicting defendant upon his plea of guiltyof the crime of criminal possession of a weapon in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminalpossession of a weapon in the third degree and waived the right to appeal. County Courtthereafter sentenced him to 180 days in jail and five years of probation, to be servedconcurrently. Defendant appeals.
We affirm. Contrary to defendant's contention, the record demonstrates that heknowingly, intelligently and voluntarily waived the right to appeal. The record reflectsthat the appeal waiver was a condition of the plea agreement, that County Courtexplained the separate and distinct nature of the waiver and that defendant affirmed hisunderstanding thereof (seePeople v Feurtado, 172 AD3d 1620, 1620 [2019], lv denied 34 NY3d931 [2019]; People vJohnson, 153 AD3d 1031, 1032 [2017], lv denied 30 NY3d 980 [2017]).Additionally, defendant signed a written waiver in open court and, in response to CountyCourt's questioning, indicated that he had reviewed the written waiver, discussed itscontents with counsel prior to signing it and understood its terms (see People v White, 172 AD3d1822, 1823 [2019], lv denied 33 NY3d 1110 [2019]; People v Hall, 167 AD3d1165, 1165-1166 [2018], lv denied 32 NY3d 1204 [2019]). Accordingly,and insofar as we discern no other infirmities with the appeal waiver (compare Peoplev Thomas, 34 NY3d 545, 564-568[2019]), we conclude that defendant validly waived the right to appeal his conviction andsentence. Defendant's valid appeal waiver precludes his contention that his sentence isharsh and excessive (see Peoplev Snare, 174 AD3d 1222, 1223 [2019], lv denied 34 NY3d 984 [2019];People v Cannelli, 173AD3d 1567, 1568 [2019]).
Defendant's challenge to the voluntariness of his plea and his ineffective assistanceof counsel claim, to the extent that it impacts the voluntariness of his plea, survive hisappeal waiver but are unpreserved for our review given that the record does not reflectthat he made an appropriate postallocution motion despite having the opportunity to doso (see People v Griffin,177 AD3d 1039, 1040 [2019], lv denied 34 NY3d 1078 [2019]; People vWhite, 172 AD3d at 1823). Moreover, defendant did not make any statements duringthe plea colloquy that cast doubt upon his guilt or otherwise called into question thevoluntariness of his plea so as to trigger the narrow exception to the preservationrequirement (see People vRichards, 176 AD3d 1496, 1499 [2019]; People v Mastro, 174 AD3d 1232, 1232 [2019]).Accordingly, defendant's contention that County Court failed to advise him of theconstitutional trial-related rights that he was forfeiting by pleading guilty (see Boykinv Alabama, 395 US 238, 243 [1969]) was not preserved (see People v Conceicao, 26NY3d 375, 382 [2015]; People v Small, 166 AD3d 1237, 1238 [2018]). In anyevent, the record reflects that defendant was fully advised of and understood the waiverof his trial-related rights (see People v Conceicao, 26 NY3d at 381-384; People v Toledo, 144 AD3d1332, 1333 [2016], lv denied 29 NY3d 1001 [2017]). The balance ofdefendant's ineffective assistance of counsel claim, including that counsel failed toadequately investigate the law or the facts surrounding the charges or explore potentialdefenses, concern matters outside of the record and are more properly the subject of aCPL article 440 motion (seePeople v Moore, 169 AD3d 1110, 1112 [2019], lv denied 33 NY3d 979[2019]; People v Breault,150 AD3d 1548, 1549 [2017]).
Egan Jr., J.P., Lynch, Mulvey and Colangelo, JJ., concur. Ordered that the judgmentis affirmed.