| People v Miller |
| 2021 NY Slip Op 00056 [190 AD3d 1029] |
| January 7, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Miller, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Connolly, J.), rendered February28, 2018 in Albany County, convicting defendant upon his plea of guilty of the crime of grandlarceny in the fourth degree (two counts).
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with two counts of grand larceny in the fourth degree. Pursuant to aplea agreement, which required defendant to waive his right to appeal, defendant pleaded guiltyto the charged crimes before County Court (Herrick, J.) with the understanding that sentencingwould be adjourned and he would be allowed to participate in a drug court treatment program. Ifsuccessful, defendant would be permitted to withdraw his plea and plead guilty to twomisdemeanor counts of petit larceny and receive concurrent sentences of time served, togetherwith a one-year conditional discharge; if unsuccessful, defendant could receive consecutiveprison terms of 2 to 4 years on the charged crimes. Throughout the resolution of those charges,defendant was represented by the Albany County Public Defender's office.
Defendant violated the terms of the drug court treatment program on more than one occasionand, ultimately, a violation petition was issued. Defendant, again represented by the AlbanyCounty Public Defender's office, thereafter agreed to admit to violating a provision of thetreatment agreement by failing to appear in drug court on a particular date with the understandingthat he would be sentenced to consecutive prison terms of 1
Defendant, as so limited by his brief, initially challenges the waiver of the right to appealmade in connection with his admission that he violated the terms and conditions of hisparticipation in the drug court treatment program. In this regard, the record reflects that SupremeCourt explained the separate and distinct nature of the right being forfeited, and defendant, whoexecuted a written waiver of appeal in open court, assured the court that he had reviewed thewaiver with counsel, had been afforded sufficient time to confer with her and understood theimplications of the waiver. Under these circumstances, we are satisfied that defendantknowingly, intelligently and voluntarily waived his right to appeal (see People v Jones, 182 AD3d698, 699 [2020]; People vHunt, 176 AD3d 1253, 1253-1254 [2019]; People v Adams, 165 AD3d 1343, 1344 [2018]).
Although defendant's challenge to the voluntariness of his underlying plea survives even avalid appeal waiver, such argument is unpreserved for our review in the absence of anappropriate postallocution motion (see People v Apelles, 185 [*2]AD3d 1298, 1299 [2020], lv denied 35 NY3d 1092 [2020];People v Thompson-Goggins, 182AD3d 916, 918 [2020]; People vGumbs, 182 AD3d 701, 702 [2020], lv denied 35 NY3d 1066 [2020]). Notably,defendant made no effort to challenge the voluntariness of his plea until the instantappeal—following his admission that he had failed to comply with the terms of hisparticipation in the drug treatment court program (see People v Koontz, 166 AD3d 1215, 1217 [2018], lvdenied 32 NY3d 1206 [2019]; People v Austin, 141 AD3d 956, 957 [2016]). Further, as defendantdid not make any statements that were inconsistent with his guilt or otherwise called intoquestion the voluntariness of his plea, the narrow exception to the preservation requirement isinapplicable (see People v Brito,184 AD3d 900, 901 [2020]; Peoplev Ramos, 179 AD3d 1395, 1397 [2020], lv denied 35 NY3d 973 [2020]).Defendant's ineffective assistance of counsel claim—to the extent that it impacts upon thevoluntariness of his plea—is similarly unpreserved (see People v Vilbrin, 183 AD3d 1012, 1013 [2020], lvdenied 35 NY3d 1049 [2020]; People v Sydlosky, 181 AD3d 1094, 1095 [2020]), as is anychallenge to the voluntariness of defendant's admission to violating the terms of the drug courttreatment agreement (see People vPeterson, 147 AD3d 1148, 1149 [2017]). The balance of defendant's ineffectiveassistance of counsel claim, which consists of allegations that counsel, among other things, failedto properly investigate defendant's prior criminal history or properly research the applicable law,involves matters outside of the record that are more properly the subject of a CPL article 440motion (see People vWeidenheimer, 181 AD3d 1096, 1097 [2020]; People v White, 172 AD3d 1822, 1824 [2019], lv denied 33NY3d 1110 [2019]).
That said, the People concede—and we agree—that reversal and remittal forresentencing is required in light of our decision in People v Sumter (169 AD3d 1275 [2019]). As noted previously,defendant entered his initial guilty plea before County Court, and, at all times relevant, includingthe underlying sentencing proceeding, defendant was represented by the Albany County PublicDefender's office. However, "the Albany County Public Defender's office was precluded, as amatter of law, from representing [defendant] at the [ ]sentencing hearing because the PublicDefender, prior to being appointed to that position, was the County Judge who presided over"defendant's plea and deferred sentencing pending defendant's completion of or discharge from thedrug court treatment program (id. at 1276). Consistent with our decision inSumter, "the judgment [ ]sentencing defendant must be reversed and the matter remittedfor resentencing, with different representation assigned to defendant" (id.). Defendant'sremaining arguments have been considered and found to be lacking in merit.
Garry, P.J., Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment[*3]is modified, on the law, by vacating the sentence imposed;matter remitted to the Supreme Court for resentencing; and, as so modified, affirmed.