| People v Danzy |
| 2020 NY Slip Op 02499 [182 AD3d 920] |
| April 30, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jalah Danzy, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Clark, J.P. Appeal from a judgment of the Supreme Court (McDonough, J.),rendered November 18, 2016 in Albany County, convicting defendant upon his plea ofguilty of the crime of burglary in the second degree.
In September 2015, defendant was charged by indictment with two counts each ofburglary in the second degree and attempted robbery in the second degree. Following ahearing, Supreme Court denied defendant's motion to suppress certain of hispre-Miranda statements to law enforcement. Defendant thereafter entered a guiltyplea to one count of burglary in the second degree and waived his right to appeal in fullsatisfaction of the indictment, as well as numerous other charges pending against him. Inaccordance with the plea agreement, defendant was sentenced, as a second felonyoffender, to a prison term of 12 years followed by five years of postrelease supervision.He appeals.
Initially, we find no merit to defendant's challenge to the validity of his appealwaiver. Supreme Court advised defendant that the waiver of his right to appeal was acondition of his plea agreement. Supreme Court thereafter explained that the waiver ofthe right to appeal was separate and apart from the trial-related rights that he wasforfeiting by pleading guilty. Defendant indicated that he understood the separate anddistinct nature of the appeal waiver and that he was in fact agreeing to waive that right.Defendant then executed a written appeal waiver in open court, which he reviewed withcounsel and acknowledged that he had read and understood. That written waiver statedthat, although defendant ordinarily retained the right to appeal, he was waiving it inconsideration of the plea agreement.
Under all of the circumstances, we are satisfied that defendant, then a 27-year-oldsecond felony offender with considerable experience with the criminal justice system (see People v Lambert, 151AD3d 1119, 1119 [2017], lv denied 29 NY3d 1092 [2017]), knowingly,voluntarily and intelligently waived his right to appeal (see People v Seaberg, 74NY2d 1, 11-12 [1989]; People vSalmon, 179 AD3d 1404, 1404 [2020]; People v Almonte, 179 AD3d 1222, 1223 [2020]). In lightof the valid appeal waiver, defendant's various challenges to the denial of his suppressionmotion and to the severity of the agreed-upon sentence are foreclosed (see People v Ramos, 179AD3d 1395, 1396 [2020]; People v Inman, 177 AD3d 1167, 1168 [2019]; People v Johnson, 153 AD3d1031, 1032 [2017], lv denied 30 NY3d 980 [2017]).
Defendant's challenge to the voluntariness of his plea, which is premised entirely onthe alleged ineffective assistance of counsel, survives his valid appeal waiver, but isunpreserved for this Court's review absent evidence of an appropriate postallocutionmotion (see People v Sabin,179 AD3d 1401, 1402 [2020]; People v White, 172 AD3d 1822, 1823-1824 [2019], lvdenied 33 NY3d 1110 [2019]). Additionally, the narrow exception to thepreservation requirement is inapplicable, as defendant did not make any statements thatwere inconsistent with his guilt, negated an element of the crime or cast doubt upon thevoluntariness of his plea (seePeople v Pastor, 28 NY3d 1089, 1090-1091 [2016]; People v Lopez, 71NY2d 662, 666 [1988]). As to his direct claim of ineffective assistance of counsel,defendant's assertions that his various attorneys failed to communicate with him, informhim of plea offers and investigate an alibi, as well as his claim that he was pressured intopleading guilty, involve matters outside of the record and are, thus, more properly thesubject of a CPL article 440 motion (see People v Derrig, 175 AD3d 1675, 1676 [2019], lvdenied 34 NY3d 1127 [2020]; People v Williams, 163 AD3d 1172, 1173 [2018], lvdenied 32 NY3d 1009 [2018]). Other alleged deficiencies, such as the quality ofrepresentation afforded to defendant during the suppression hearing, do not implicate thevoluntariness of his plea and are therefore precluded by the valid appeal waiver (see People v Trombley, 91AD3d 1197, 1201 [2012], lv denied 21 NY3d 914 [2013]; People v Santos-Rivera, 86AD3d 790, 791-792 [2011], lv denied 17 NY3d 904 [2011]). Lastly,although defendant's assertion that counsel failed to adequately explain the ramificationsof the appeal waiver would impact the voluntariness of defendant's plea, to the extentthat allegation may be resolved on the record before us (see People v Martinez, 166AD3d 1376, 1377 [2018], lv denied 32 NY3d 1207 [2019]), it has not beenpreserved for our review (seePeople v Schmidt, 179 AD3d 1384, 1385 [2020]; People v Mastro, 174 AD3d1232, 1233 [2019]).
Mulvey, Devine, Pritzker and Colangelo, JJ., concur. Ordered that judgment isaffirmed.