| People v Aponte |
| 2021 NY Slip Op 00057 [190 AD3d 1031] |
| January 7, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joshua Aponte, Also Known as Pharaoh and Joshua Solano,Appellant. |
Linda B. Johnson, Albany, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Rensselaer County (Sober, J.),rendered November 7, 2018, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the second degree.
In full satisfaction of a 10-count indictment, defendant agreed to plead guilty to criminalpossession of a weapon in the second degree and to waive his right to appeal. Consistent with theterms of the plea agreement, County Court sentenced him, as a second felony offender, to aprison term of 12 years followed by five years of postrelease supervision. Defendantappeals.
Defendant contends that his waiver of the right to appeal is invalid. At the outset of the pleaproceedings, defendant was advised that an appeal waiver was a condition of the plea agreement.Additionally, County Court advised defendant that the right to appeal was separate and distinctfrom other trial-related rights automatically forfeited by his guilty plea. Thereafter, defendantsigned a written waiver of appeal. However, this waiver contained overbroad language as to thelegal ramifications of waiving his right to appeal, including that the "case will come to an endwhen [he is] sentenced" and he will "not have the right to have any [c]ourt review [his] case forany reason." We find that County Court failed to make clear to defendant that the appeal waiverwas not a total bar to defendant taking an appeal, nor did the court adequately ensure thatdefendant understood the contents or ramifications of the waiver (see People v Thomas, 34 NY3d545, 565-566 [2019]; People vAnderson, 184 AD3d 1020, 1020 [2020], lv denied 35 NY3d 1064 [2020]; People v Barrales, 179 AD3d1313, 1314 [2020]). Based on the record, which consists of defendant's one-word responsesto the court's questions, coupled with the language contained in the written waiver, there is noindication that defendant understood that he retained the right to some appellate review.Therefore, we do not find that he knowingly, intelligently and voluntarily waived his right toappeal (see People v Rodriguez, 185AD3d 1296, 1297 [2020]; People vBrito, 184 AD3d 900, 901 [2020]; People v Pope, 129 AD3d 1389, 1389 [2015]).
Defendant next challenges the voluntariness and/or factual sufficiency of his plea. Theseissues, however, are unpreserved for our review absent evidence of an appropriate postallocutionmotion (see People v Brito, 184 AD3d at 901; People v Barrales, 179 AD3d at1315). Further, as defendant did not make any statements during the plea colloquy or atsentencing that cast doubt upon his guilt, negated an element of the charged crime or otherwisecalled into question the voluntariness of his plea, the narrow exception to the preservationrequirement is inapplicable (see Peoplev Pastor, 28 NY3d 1089, 1090-1091 [2016]; People v Lopez, 71 NY2d 662, 666[1988]).
To the extent that defendant's ineffective assistance of counsel claim implicates thevoluntariness of his plea, it is likewise [*2]unpreserved for ourreview for failure to make an appropriate postallocution motion (see People v Weidenheimer, 181 AD3d1096, 1097 [2020]; People vDrake, 179 AD3d 1221, 1222 [2020], lv denied 35 NY3d 941 [2020]).Defendant's direct claims of ineffective counsel, based upon allegations that counsel failed tocommunicate plea offers and secure a more advantageous disposition, involve matters outside ofthe record and are therefore more properly the subject of a CPL article 440 motion (see People v Danzy, 182 AD3d920, 921-922 [2020], lv denied 35 NY3d 1043 [2020]; People v Sablan, 177 AD3d 1024,1026 [2019], lv denied 34 NY3d 1132 [2020]; People v Santiago, 118 AD3d 1032, 1033 [2014]). Lastly, we arenot persuaded that the agreed-upon sentence, which is three years less than the maximumpermissible period (see Penal Law §§ 70.06 [6] [b]; 70.45 [2]; 265.03[3]), was an abuse of discretion, and defendant has failed to articulate any extraordinarycircumstances warranting modification of his sentence in the interest of justice (see People v Alolafi, 170 AD3d1379, 1380 [2019]; People vMcKinney, 141 AD3d 1031, 1032 [2016]).
Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment is affirmed.