| People v Gudanowski |
| 2020 NY Slip Op 06141 [187 AD3d 1205] |
| October 28, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Paul T. Gudanowski, Appellant. |
Richard N. Lentino, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (William C. Ghee of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Craig S.Brown, J.), rendered September 25, 2017, convicting him of assault in the second degree anddriving while intoxicated, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that his appeal waiver was invalid because the County Court did notadvise him of the limited number of claims that survive the waiver of the right to appeal. "[A]waiver of the right to appeal is not an absolute bar to the taking of a first-tier direct appeal" (People v Thomas, 34 NY3d 545,558 [2019]; see People v Callahan, 80 NY2d 273, 280 [1992]). "Appeal waivers usingsuch shorthand pronouncements [such as waiver of the right to appeal] are enforceable so long asthe totality of the circumstances reveals that the defendant understood the nature of the appellaterights being waived" (People v Thomas, 34 NY3d at 559). "[P]roper considerationsinclude the defendant's consultation with counsel and on-the-record acknowledgments ofunderstanding, a written appeal waiver that supplements or clarifies the court's oral advice andthe defendant's experience with the criminal justice system" (id. at 560). The Court ofAppeals has noted that "the Model Colloquy for the waiver of right to appeal drafted by theUnified Court System's Criminal Jury Instructions and Model Colloquy Committee neatlysynthesizes our precedent and the governing principles and provides a solid reference for a betterpractice" (id. at 567; see Peoplev Batista, 167 AD3d 69, 76 [2018]; NY Model Colloquies, Waiver of Right to Appeal).Here, contrary to the People's contention, the defendant was not required to preserve for appellatereview his challenge to the validity of the appeal waiver (see People v Ramos, 135 AD3d 1234, 1235 [2016]; People v McGrew, 118 AD3d1490, 1490 [2014]; People vBaliraj, 101 AD3d 1175, 1176 [2012]; People v Hoover, 37 AD3d 298, 299-300 [2007]). The record doesnot reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal(see People v Bradshaw, 18 NY3d257 [2011]). The court's colloquy suggested that the appellate rights waived encompassed anabsolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poorperson relief (see People v Thomas, 34 NY3d at 564-566), and the written waiver formalso mischaracterized the nature of the right to appeal by stating that the waiver encompassed allissues relating to the defendant's plea and sentence. Thus, the purported waiver does not precludeappellate review of any of the defendant's contentions.
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record, and,thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571,575 n 2 [2011]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety, and we decline to review the claim onthis direct appeal (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's contention that his constitutional right to a speedy trial was violated isunpreserved for appellate review since it is raised for the first time on appeal (see People v Price, 150 AD3d1153, 1153 [2017]; People vWorthy, 138 AD3d 1042, 1043 [2016]). In any event, upon balancing all of the factorsto be considered, we find that the defendant's right to a speedy trial was not violated (seePeople v Taranovich, 37 NY2d 442, 445 [1975]; People v Briggs, 123 AD3d 1051, 1052 [2014]; People v Franco, 104 AD3d 790,791 [2013]).
The defendant's contention that the County Court failed to properly advise him of all of hisconstitutional rights under Boykin v Alabama (395 US 238 [1969]) is unpreserved forappellate review (see People vHolloway, 154 AD3d 966 [2017]), and, in any event, without merit.
The defendant's challenge to the factual sufficiency of the plea allocution is unpreserved forappellate review (see People vElcine, 43 AD3d 1176 [2007]; People v Nash, 38 AD3d 684 [2007]). Moreover, the "rare case"exception to the preservation requirement as enunciated in People v Lopez (71 NY2d662, 666 [1988]), does not apply because the defendant's allocution did not clearly castsignificant doubt on his guilt, negate an essential element of the crime, or call into question thevoluntariness of the plea (see People vNash, 38 AD3d 684 [2007]). In any event, the defendant's contention is withoutmerit.
The defendant's remaining contentions cannot be resolved without reference to matteroutside the record, and we therefore cannot review those claims on this direct appeal (seePeople v Franco, 104 AD3d at 791). Dillon, J.P., Maltese, Duffy and Barros, JJ., concur.