| People v Crossley |
| 2021 NY Slip Op 00595 [191 AD3d 1046] |
| February 4, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Crossley Jr., Appellant. |
Linda B. Johnson, Albany, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), forrespondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Rensselaer County (Young,J.), rendered October 3, 2018, convicting defendant upon his plea of guilty of the crime of assaultin the second degree, and (2) from a judgment of said court, rendered January 2, 2019, whichresentenced defendant.
Defendant was charged in a four-count indictment with attempted murder in the seconddegree, assault in the first degree, assault in the second degree and criminal possession of aweapon in the fourth degree. The charges stemmed from an incident that occurred in May 2018when defendant attacked another individual with a box cutter. County Court subsequentlydismissed the count of the indictment charging assault in the first degree, and defendantthereafter agreed to plead guilty to assault in the second degree—in full satisfaction of theremaining counts of the indictment—with the understanding that he would be sentenced tofive years in prison followed by five years of postrelease supervision. The plea agreement alsorequired defendant to waive his right to appeal. Following defendant's plea, County Courtimposed the contemplated period of imprisonment, and defendant appealed from the judgment ofconviction. Upon discovering that the period of postrelease supervision imposed was illegal,County Court resentenced defendant to five years in prison followed by three years of postreleasesupervision, and defendant then appealed from the judgment resentencing him.
We affirm. Contrary to defendant's assertion, we find that his waiver of the right to appealwas knowing, intelligent and voluntary. County Court explained that the waiver was separate anddistinct from the trial-related rights that defendant was forfeiting by pleading guilty, anddefendant, who was aware that such waiver was a term and condition of the plea agreement,confirmed his understanding thereof (seePeople v Weidenheimer, 181 AD3d 1096, 1096 [2020]; People v Provost, 181 AD3d 1059,1059 [2020]). Additionally, defendant executed a written waiver in open court and assured thecourt that he had reviewed that document with counsel and understood its contents (see People v Williams, 185 AD3d1359, 1360 [2020]; People vJones, 182 AD3d 698, 699 [2020]). To the extent that "defendant challenges thelanguage of the written waiver as overbroad, County Court advised defendant during thecolloquy that not all appellate rights can be waived, and we are satisfied that 'defendantunderstood the distinction that some appellate rights survived' " (People v Brunson, 185 AD3d1300, 1300 n [2020], lv denied 36 NY3d 928 [2020], quoting People v Thomas, 34 NY3d 545,561 [2019]; see People v Martin,179 AD3d 1385, 1386 [2020]; compare People v Anderson, 184 AD3d 1020, 1020-1021 [2020],lv denied 35 NY3d 1064 [2020]). In light of the valid appeal waiver, defendant'sargument regarding the perceived severity of his sentence is precluded (see People v Gumbs, 182 AD3d701, 702 [2020], lv denied [*2]35 NY3d 1066[2020]; People v Sabin, 179 AD3d1401, 1402 [2020], lv denied 35 NY3d 995 [2020]).
Although defendant's challenge to the voluntariness of his plea survives even a valid appealwaiver, his argument is unpreserved for our review absent evidence of an appropriatepostallocution motion (see People vApelles, 185 AD3d 1298, 1299 [2020], lv denied 35 NY3d 1092 [2020];People v Gumbs, 182 AD3d at 702). Defendant's ineffective assistance of counselclaim—to the extent that it impacts upon the voluntariness of his plea—is similarlyunpreserved (see People vHarrington, 185 AD3d 1301, 1302 [2020]; People v Drake, 179 AD3d 1221, 1222 [2020], lv denied 35NY3d 941 [2020]). Moreover, the narrow exception to the preservation requirement was nottriggered, as defendant did not make any statements during the plea colloquy that wereinconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v Danzy, 182 AD3d920, 921 [2020], lv denied 35 NY3d 1043 [2020]; People v Hunt, 176 AD3d 1253,1254 [2019]). To the extent that defendant asked for a "mistrial" and new counsel at the time ofhis resentencing, we note that he also expressly declined the opportunity to withdraw his plea atthat time (see People vThompson-Goggins, 182 AD3d 916, 918 [2020]). Defendant's remaining arguments, tothe extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Clark, Aarons and Colangelo, JJ., concur. Ordered that the judgments areaffirmed.