| People v Blanchard |
| 2020 NY Slip Op 06824 [188 AD3d 1414] |
| November 19, 2020 |
| Appellate Division, Third Department |
[*1](November 19, 2020)
| The People of the State of New York,Respondent, v Doc M. Blanchard, Appellant. |
Dana L. Salazar, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), forrespondent.
Aarons, J. Appeals (1) from a judgment of the County Court of Rensselaer County (Ceresia,J.), rendered August 19, 2015, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the first degree, and (2) from an order of said court (Sober, J.), enteredFebruary 27, 2019, which denied defendant's motion to settle the record.
In a September 2014 indictment, defendant was charged with robbery in the first degree,robbery in the second degree, criminal possession of a weapon in the third degree, menacing inthe second degree and harassment in the second degree. In full satisfaction thereof, defendantpleaded guilty to a reduced charge of attempted robbery in the first degree and waived his right toappeal, both orally and in writing. Consistent with the terms of the plea agreement, County Court(Ceresia, J.) imposed upon defendant, as a second felony offender, a prison sentence of eightyears, to be followed by five years of postrelease supervision. Defendant's subsequent motion tosettle the record was denied by County Court (Sober, J.) in a February 2019 decision and order,prompting these appeals.
Initially, with regard to County Court's denial of defendant's motion to settle the record, thePeople did not oppose many of defendant's proposed amendments concerning an unrelatedincident (see People v La Motte, 276 AD2d 931, 932 [2000]). Defendant, however, hasfailed to demonstrate that the requested videotape ever existed and that the remaining proposedamendments were ever considered by, or part of the record before, County Court (Ceresia, J.).Under these circumstances, we find no abuse of discretion in the denial of defendant's motion tosettle the record (see 22 NYCRR former 800.7; People v La Motte, 276 AD2d at932-933; People v Hummer, 217 AD2d 713, 714 [1995], lv denied 86 NY2d 843[1995]; see also 22 NYCRR 850.7 [b] [2] [3]; 1250.7).
Contrary to his contention, defendant validly waived his right to appeal. The record reflectsthat defendant was advised at the outset of the plea proceeding that the waiver of his right toappeal was a condition of the plea agreement, and defendant indicated his understanding of thiscondition and that he had no questions (see People v Cannelli, 173 AD3d 1567, 1567-1568 [2019]; People v Vanalst, 171 AD3d 1349,1350 [2019], lv denied 33 NY3d 1109 [2019]; People v Cherry, 166 AD3d 1220, 1221 [2018]). During the pleacolloquy, County Court distinguished the right to appeal as separate and distinct from the othertrial-related rights automatically forfeited by a guilty plea (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Danielson, 170 AD3d1430, 1431 [2019], lv denied 33 NY3d 1030 [2019], cert denied 589 US&mdash, 140 S Ct 486 [2019]; People vTucker, 164 AD3d 948, 949 [2018]). In addition, the written waiver executed bydefendant in open court after conferring with counsel made clear that the waiver of the right toappeal was separate from those rights automatically forfeited upon a plea of guilty and that hewas giving up his right to appeal from his conviction and sentence (see People v Crawford, 181 AD3d1057, 1058 [2020]; People vBoyette, 175 AD3d 751, 752 [2019], lv denied 34 NY3d 979 [2019]). Althoughthe written waiver contained some overbroad language, the record reflects that the counseleddefendant was aware of the fact that "not all appellate rights can be waived, and we are satisfiedthat 'defendant understood the distinction that some appellate rights survived' " (People v Brunson, 185 AD3d1300, 1300 n [2020], quoting People v Thomas, 34 NY3d 545, 561 [2019]). Accordingly, we findthat defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v Sanders, 25 NY3d337, 341 [2015]; People v Lopez, 6 NY3d at 256; People v Cherry, 166AD3d at 1221).
Given the valid appeal waiver, defendant's claim that he was denied the effective assistanceof counsel is precluded except insofar as the alleged ineffectiveness could be construed to haveimpacted upon the voluntariness of his plea (see People v Taft, 169 AD3d 1266, 1267 [2019], lv denied33 NY3d 1074 [2019]; People vJeske, 55 AD3d 1057, 1058 [2008], lv denied 11 NY3d 898 [2008]). To thatextent, however, the absence of an appropriate postallocution motion renders the matterunpreserved (see People v Johnson,170 AD3d 1274, 1275 [2019]; People v Dickerson, 168 AD3d 1194, 1194-1195 [2019]; People v Muller, 166 AD3d 1240,1241 [2018]). To the extent that defendant alleges that counsel failed to adequately explain theterms of the plea agreement with him or properly review all available evidence, such claimsimplicate matters outside of the record and, therefore, are more properly the subject of a CPLarticle 440 motion (see People vSnare, 174 AD3d 1222, 1223 [2019], lv denied 34 NY3d 984 [2019]; People v Muller, 159 AD3d 1232,1233 [2018]; People v Brown, 115AD3d 1115, 1116 [2014], lv denied 24 NY3d 959 [2014]).
Egan Jr., J.P., Mulvey and Pritzker, JJ., concur. Ordered that the judgment and order areaffirmed.