| People v Feltz |
| 2021 NY Slip Op 00055 [190 AD3d 1027] |
| January 7, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ryan Feltz, Appellant. |
Erin C. Morigerato, Albany, for appellant.
Joseph Stanzione, District Attorney, Catskill (Denise J. Kerrigan of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Greene County (Young, J.),rendered July 16, 2018, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2014, defendant was convicted of criminal possession of a weapon in the third degree andwas sentenced to five years of probation. While executing an eviction warrant in 2018 at aresidence occupied by defendant, police recovered a number of loaded handguns. As a result,defendant was charged with criminal possession of a weapon in the third degree and violating hisprobation conditions. He subsequently pleaded guilty to the weapon charge, purportedly waivedhis right to appeal and admitted to violating the conditions of his probation. In accord with theterms of the plea agreement, defendant's probation was revoked and he was resentenced on the2014 crime to a prison term of 1 to 3 years.[FN*] Defendant appeals.
Defendant's right to appeal was knowingly, intelligently and voluntarily waived (see People v Inman, 177 AD3d1167, 1167-1168 [2019]; see alsoPeople v Lopez, 6 NY3d 248, 256-257 [2006]). The People, in setting forth the terms ofthe plea, and County Court, in the plea colloquy, advised defendant that the plea bargain requireda waiver of appeal for both the violation of probation and the new charge. The court conducted athorough colloquy; following a discussion of defendant's trial rights, the court distinguisheddefendant's right to appeal as separate, apart and independent from his trial rights, verified thatdefendant understood the right to appeal before entering his plea, and confirmed that defendanthad discussed the plea and the appeal waiver with his counsel. The valid waiver precludesdefendant's challenge to the severity of the sentence (see People v Dorsey, 170 AD3d 1325, 1326 [2019], lvdenied 33 NY3d 1068 [2019]).
To the extent that defendant challenges the voluntariness of his admission to the probationviolation, such a challenge survives his appeal waiver, but is unpreserved for our review absentevidence of an appropriate postallocution motion (see People v Huntley, 177 AD3d 1034, 1035 [2019], lvdenied 34 NY3d 1129 [2020]; People v Mastro, 174 AD3d 1232, 1232 [2019]). Moreover,defendant's statements at sentencing regarding a postconviction challenge to the underlying 2014conviction that he had filed in another court did not negate his factual admissions to the elementsof the probation violation or otherwise trigger the narrow exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Gumbs, 182 AD3d 701,702 [2020], lv denied 35 NY3d 1066 [2020]). The appeal waiver similarly does notpreclude defendant's claim of ineffective assistance of counsel, to the extent that it relates to thevoluntariness of the plea, but that claim is also unpreserved in the absence of an appropriatepostallocution motion (see People vBadmaxx, 178 AD3d 1205, 1205 [2019]; People v Williams, 150 AD3d 1549, 1551 [2017]). [*2]As for counsel's other alleged inadequacies, including his claimedfailure to properly advise defendant and investigate potential defenses, these involve mattersoutside the record that are more properly raised in a CPL article 440 motion (see People v Drake, 179 AD3d1221, 1222 [2020], lv denied 35 NY3d 941 [2020]; People v Mastro, 174AD3d at 1233). We have considered defendant's remaining contentions, including those raised inhis pro se brief, and find them to be unpersuasive.
Egan Jr., Mulvey and Colangelo, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant was also sentenced asa second felony offender upon his conviction of criminal possession of a firearm to a prison termof 1