| People v Hemingway |
| 2021 NY Slip Op 01446 [192 AD3d 1266] |
| March 11, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyvon Hemingway, Also Known as 7 Minute Man,Appellant. |
Linda B. Johnson, Albany, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the County Court of Rensselaer County (Young, J.),rendered December 8, 2017, convicting defendant upon his plea of guilty of the crimes ofcriminal sale of a controlled substance in the third degree and criminal possession of a weapon inthe second degree.
In 2016, defendant was charged in a 12-count indictment with, among other things, criminalsale of a controlled substance in the second degree after he sold drugs to a confidential informant.In 2017, he was charged in a single-count indictment with criminal possession of a weapon in thesecond degree. In satisfaction of both indictments, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree and criminal possession of a weapon in the seconddegree, and purported to waive his right to appeal. In accordance with the terms of the pleaagreement, he was sentenced as a second felony offender to seven years in prison followed bythree years of postrelease supervision on the controlled substance conviction, and to seven yearsin prison followed by five years of postrelease supervision on the weapon conviction, whichsentences were to run concurrently. Defendant appeals.
We affirm. Initially, we find no merit to defendant's claim that his waiver of the right toappeal was invalid. At the outset, County Court advised defendant that the appeal waiver waspart of the plea agreement and, after explaining the trial-related rights that he was forfeiting bypleading guilty, the court informed him that the right to appeal was separate and distinct fromthose rights (see People v Burnett,186 AD3d 1837, 1837-1838 [2020], lv denied 36 NY3d 970 [2020]; People v Williams, 185 AD3d1352, 1353 [2020], lv denied 35 NY3d 1116 [2020]). Defendant indicated that heunderstood the ramifications of the waiver and was giving up his right to appeal both theconviction and sentence. He then executed a written waiver in open court after reviewing it withcounsel and stated that he understood the waiver form and signed it voluntarily (see People v Purnell, 186 AD3d1834, 1834 [2020], lv denied 36 NY3d 975 [2020]; People v Pugliese, 185 AD3d1358, 1359 [2020]). Under the circumstances presented, and given that we discern no otherinfirmities in the waiver (comparePeople v Thomas, 34 NY3d 545, 562-563 [2019]; People v Barrales, 179 AD3d 1313, 1314 [2020]), we conclude thatdefendant's combined oral and written waiver of the right to appeal was knowing, voluntary andintelligent (see People v Burnett, 186 AD3d at 1838; People v Purnell, 186 AD3dat 1834). In view of his valid appeal waiver, defendant is precluded from challenging the severityof the sentence (see People v White,185 AD3d 1355, 1356 [2020], lv denied 36 NY3d 977 [2020]; People vWilliams, 185 AD3d at 1353).
Defendant further contends that his guilty plea should be vacated as it was not knowing,voluntary and intelligent. Although not precluded by his valid appeal waiver, defendant [*2]has failed to preserve this claim for our review as the record doesnot disclose that he made an appropriate postallocution motion, and the narrow exception to thepreservation requirement was not triggered by the statements that he made during the pleacolloquy (see People v Rodriguez,185 AD3d 1233, 1235 [2020], lv denied 36 NY3d 975 [2020]; People v Anderson, 184 AD3d1020, 1021 [2020], lv denied 35 NY3d 1064 [2020]). For the same reason, his claimthat he was denied the effective assistance of counsel—to the extent that it impacted thevoluntariness of his plea—has also not been preserved (see People v Dickerson, 168 AD3d1194, 1195 [2019]; People vNorton, 164 AD3d 1502, 1503 [2018], lv denied 32 NY3d 1114 [2018]). Insofaras defendant asserts that counsel did not diligently investigate his case, this concerns mattersoutside the record that is more properly the subject of a CPL article 440 motion (see People v Blanchard, 188 AD3d1414, 1416 [2020]; People vMuller, 159 AD3d 1232, 1233 [2018]).
Clark, J.P., Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.