| People v Hart |
| 2020 NY Slip Op 06828 [188 AD3d 1424] |
| November 19, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeremy Hart, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Columbia County (Koweek, J.),rendered February 22, 2019, convicting defendant upon his plea of guilty of the crimes of rape inthe first degree (56 counts) and incest in the third degree (56 counts).
Defendant was indicted and charged with rape in the first degree (56 counts) and incest in thethird degree (56 counts). The charges stemmed from defendant's sexual contact with the victim,to whom defendant knew he was related, between August 2012 and March 2017—a periodof time when the victim was residing with defendant. Following an unsuccessful motion todismiss the indictment based upon the People's alleged failure to comply with certain of therequirements set forth in CPL 200.30 and 200.50, defendant pleaded guilty to the entireindictment with the understanding that he would be sentenced to concurrent prison terms of 15years followed by 15 years of postrelease supervision upon his convictions of rape in the firstdegree and to lesser concurrent prison terms upon his convictions of incest in the third degree. Aspart of the plea agreement, defendant also waived his right to appeal. County Court thereafterimposed the agreed-upon sentence. Defendant appeals, contending that he was denied theeffective assistance of counsel because defense counsel failed to challenge certain aspects of theindictment.
We affirm. To the extent that defendant's ineffective assistance of counsel claim impactsupon the voluntariness of his plea, such claim survives his unchallenged appeal waiver but isunpreserved for our review in the absence of an appropriate postallocution motion (see People v Harrington, 185 AD3d1301, 1302 [2020]; People vVilbrin, 183 AD3d 1012, 1013 [2020], lv denied 35 NY3d 1049 [2020]; People v Gumbs, 182 AD3d 701,703 [2020], lv denied 35 NY3d 1066 [2020]). Upon reviewing the record, we find thatthe narrow exception to the preservation requirement is inapplicable, as defendant did not makeany statements during the plea colloquy that negated an element of the charged crimes, wereinconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v Danzy, 182 AD3d920, 921 [2020], lv denied 35 NY3d 1043 [2020]; People v Weidenheimer, 181 AD3d1096, 1097 [2020]). When questioned on this point at the time of his plea, defendant assuredthe court that he had been afforded sufficient time to confer with counsel and was satisfied withcounsel's services. In any event, defense counsel did demand a bill of particulars andunsuccessfully moved to dismiss the indictment based upon the People's alleged failure tocomply with certain aspects of CPL 200.50, and any further lack of specificity in the indictmentitself or counsel's related motion practice did not—under the circumstances presentedhere—rise to the level of ineffective assistance of counsel.
Garry, P.J., Egan Jr., Lynch and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.