| People v Payson |
| 2020 NY Slip Op 07628 [189 AD3d 1820] |
| December 17, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James Payson, Appellant. |
Dennis J. Lamb, Troy, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Franklin County (Richards, J.),rendered November 14, 2017, convicting defendant upon his plea of guilty of the crime ofpromoting a sexual performance by a child (four counts).
Defendant was charged in an 88-count indictment with predatory sexual assault of a child,sex trafficking, promoting a sexual performance by a child (43 counts) and possessing a sexualperformance by a child (43 counts). In satisfaction of all charges, defendant pleaded guilty to fourcounts of promoting a sexual performance by a child and waived his right to appeal. CountyCourt thereafter imposed a prison term on each conviction of 2
We affirm. Defendant's challenge to his guilty plea as not knowing, voluntary and intelligentwas not preserved for our review by an appropriate postallocution motion, despite ample time todo so (see CPL 220.60 [3]; People v Williams, 27 NY3d 212, 219-222 [2016]; People v Favreau, 174 AD3d1226, 1227 [2019], lv denied 34 NY3d 980 [2019]). Further, defendant did not makeany statements during his plea allocution or prior to being sentenced that were inconsistent withhis guilt or called into question the voluntariness of his plea so as to trigger the narrow exceptionto the preservation rule (see People vTyrell, 22 NY3d 359, 363-364 [2013]; People v Lopez, 71 NY2d 662, 666[1988]).
Even were we to view defendant's post-sentencing outburst regarding the agreed-uponsentence as preserving a challenge to the voluntariness of his guilty plea, we would find that it isbelied by the record and lacks merit. After sentence was imposed, defendant exclaimed thatdefense counsel had "lied to [him]" by telling him that he would be sentenced to1
Defendant also argues that his plea is invalid in that County Court failed to advise him howhis aggregate sentence would be adjusted pursuant to Penal Law § 70.30 (1) (e) (i).Penal Law § 70.30, which provides for the calculation of multiple sentences, "doesnot affect the authority of the courts to impose multiple sentences or govern the lengths ofindividual sentences but [*2]instead it provides direction to thecorrectional authorities as to how to compute the time which must be served under the sentences"(People ex rel. Ryan v Cheverko, 22NY3d 132, 136 [2013] [internal quotation marks and citation omitted]; see People vMoore, 61 NY2d 575, 578 [1984]). As we previously recognized, "[t]he failure to inform [a]defendant of such calculations—which is done by correctional authorities—doesnot render the plea involuntary" (Peoplev DePerno, 148 AD3d 1463, 1465 [2017], lv denied 29 NY3d 1030 [2017]; see People v Wiggins, 176 AD3d1255, 1257 [2019]). Although during the plea proceeding there was a brief reference tocorrection authorities adjusting the aggregate sentence, which defense counsel indicated he haddiscussed with defendant, no specifics were discussed, and the record does not reflect thatdefendant was in any sense misinformed as to what that adjustment would be. Under thesecircumstances, we find that defendant's guilty plea was knowing, voluntary and intelligent(see People v Wiggins, 176 AD3d at 1257; see People v Conceicao, 26 NY3d 375, 382-383 [2015]).Defendant's challenge to his agreed-upon sentence as harsh and excessive is precluded by his oraland written waiver of appeal, which made clear the separate and distinct nature of that waiverand its consequences (see People vLopez, 6 NY3d 248, 256 [2006]; People v Sabin, 179 AD3d 1401, 1402 [2020], lv denied 35NY3d 995 [2020]).
Defendant's related claim that he was denied the effective assistance of counsel based uponcounsel's alleged misadvice survives his appeal waiver to the extent that it impacts upon thevoluntariness of his plea, but is nevertheless unpreserved for our review in the absence of anappropriate postallocution motion (seePeople v Jones, 184 AD3d 901, 902 [2020], lv denied 35 NY3d 1113 [2020]).Even were we to view it as preserved by defendant's statements at the end of the sentencingproceeding, "[i]n the context of a guilty plea, a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the record cast doubtupon the apparent effectiveness of counsel" (People v Cross, 165 AD3d 1315, 1316 [2018] [internal quotationmarks and citation omitted]). Were we to address defendant's claim on this record, we wouldconclude that he received meaningful representation (see People v Benevento, 91 NY2d708, 712 [1998]). Defendant's contention that counsel provided inaccurate assurances regardinghis maximum aggregate sentencing exposure concerns matters outside of the record and, as such,is more appropriately pursued in a motion pursuant to CPL article 440 (see People v Gumbs, 182 AD3d701, 703 [2020], lv denied 35 NY3d 1066 [2020]; People v Drake, 179 AD3d 1221,1222 [2020], lv denied 35 NY3d 941 [2020]).
Garry, P.J., Egan Jr. and Aarons, JJ., concur. Ordered that the judgment is affirmed.