People v Lafond

2020 NY Slip Op 07630 [189 AD3d 1824]

December 17, 2020

Appellate Division, Third Department

As corrected through Wednesday, February 3, 2021

[*1]

The People of the State of New York,Respondent, v Lordson Lafond, Appellant.

Linda B. Johnson, Albany, for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), forrespondent.

Aarons, J. Appeal from a judgment of the County Court of Rensselaer County (Sober, J.),rendered September 25, 2018, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the third degree.

Defendant was charged in an indictment with attempted criminal possession of a controlledsubstance in the first degree. Following arraignment, he filed an omnibus motion seeking, amongother things, to dismiss the charge due to insufficient evidence before the grand jury. CountyCourt reviewed the grand jury minutes and concluded that the evidence was legally sufficient tosupport the indictment. Defendant thereafter pleaded guilty to attempted criminal possession of acontrolled substance in the third degree and purportedly waived the right to appeal. County Courtsentenced defendant, as a second felony offender, to 31/2 years in prison, to befollowed by three years of postrelease supervision. Defendant appeals.

We affirm. Initially, we agree with defendant that he did not knowingly, intelligently andvoluntarily waive the right to appeal. The written appeal waiver that defendant signed containedlanguage that indicated that the waiver was an absolute bar to any appeal. A review of the pleacolloquy reveals that County Court did not overcome this defect by ensuring that defendant"understood the distinction that some appellate review survived" the appeal waiver (People v Thomas, 34 NY3d 545,561 [2019]; see People v Allevato,170 AD3d 1264, 1265 [2019], lv denied 34 NY3d 949 [2019]). As such, we find thatdefendant did not enter a knowing, intelligent and voluntary appeal waiver (see People v Anderson, 184 AD3d1020, 1020-1021 [2020], lv denied 35 NY3d 1064 [2020]; People v Barrales, 179 AD3d1313, 1314 [2020]; compare Peoplev Martin, 179 AD3d 1385, 1386 [2020]).

Defendant's challenge to the voluntariness of his plea is unpreserved for our review as therecord does not reflect that defendant made an appropriate postallocution motion (see People v Gumbs, 182 AD3d701, 702 [2020], lv denied 35 NY3d 1066 [2020]; People v Small, 166 AD3d 1237,1238 [2018]). Moreover, defendant did not make any statements during the plea colloquy or atsentencing that cast doubt upon his guilt or called into question the voluntariness of his plea so asto trigger the narrow exception to the preservation rule (see People v Sydlosky, 181 AD3d 1094, 1094-1095 [2020]; People v Drake, 179 AD3d 1221,1222 [2020], lv denied 35 NY3d 941 [2020]). Defendant's contention that County Courterred in denying his motion to dismiss the indictment was waived by his guilty plea (seePeople v Hansen, 95 NY2d 227, 232 [2000]; People v King, 185 AD3d 1090, 1090-1091 [2020]).

Turning to defendant's ineffective assistance of counsel claims, to the extent that theyimplicate the voluntariness of his plea, they are unpreserved for our review absent evidence of anappropriate postallocution motion (see People v Sabin, 179 AD3d [*2]1401, 1403 [2020], lv denied 35 NY3d 995 [2020]; People v Thomas, 178 AD3d1237, 1237-1238 [2019]). Defendant's claim that counsel was ineffective for not advisinghim of or pursuing an entrapment defense concerns matters outside of the record and, therefore,is more properly raised in a CPL article 440 motion (see People v Duggins, 161 AD3d 1445, 1446 [2018], lvdenied 32 NY3d 937 [2018]). His claim that counsel was ineffective for failing to advocatefor a drug treatment program is belied by the record and, inasmuch as counsel negotiated anadvantageous plea and there is nothing in the record that casts doubt on counsel's effectiveness,we find that defendant was provided meaningful representation in connection with his guilty plea(see People v Robles, 172 AD3d1780, 1782 [2019], lv denied 34 NY3d 983 [2019]; People v Griffin, 165 AD3d 1316,1318 [2018]). As for defendant's claim that the sentence imposed is harsh and excessive, wediscern no abuse of discretion or extraordinary circumstances warranting modification of thesentence in the interest of justice (seePeople v Brito, 184 AD3d 900, 901 [2020]; People v Allevato, 170 AD3d at1265).

Lynch, J.P., Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.