| People v Brewster |
| 2021 NY Slip Op 03221 [194 AD3d 1266] |
| May 20, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Richard Brewster, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered September 14, 2017, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the second degree.
Defendant pleaded guilty to the reduced charge of attempted criminal possession of a weaponin the second degree and agreed to waive his right to appeal. Defendant was sentenced, as asecond violent felony offender, in accordance with the terms of the plea agreement to a prisonterm of five years followed by five years of postrelease supervision. Defendant appeals.
Initially, the People concede, and our review of the record confirms, that defendant's waiverof the right to appeal is invalid. The record reflects that County Court did not inform defendantthat the right to appeal was separate and distinct from the rights automatically forfeited by theguilty plea nor did the court adequately explain and elicit defendant's understanding of the natureand ramifications of the waiver of the right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Alexander, 174 AD3d1068, 1068 [2019], lv denied 34 NY3d 949 [2019]). Although defendant alsoexecuted a written appeal waiver, the court "did not verify that defendant had read andunderstood the written appeal waiver or discussed it with counsel" (People v Alexander,174 AD3d at 1068 [internal quotation marks and citations omitted]).
However, defendant's contention that his plea was involuntary is unpreserved for our review,as the record does not reflect that he made an appropriate postallocution motion (see People v Drayton, 189 AD3d1892, 1893 [2020]; People vSmith, 188 AD3d 1357, 1357 [2020]). Further, the narrow exception to the preservationrequirement is inapplicable as the record does not reflect that defendant made any statements thatcast doubt upon his guilt, negated an element of the crime, or called into question thevoluntariness of his plea (see People vAponte, 190 AD3d 1031, 1032 [2021]; People v Feltz, 190 AD3d 1026, 1027 [2021]). Defendant'scontention that he received ineffective assistance of counsel affecting the voluntariness of hisplea is similarly unpreserved, absent an appropriate postallocution motion (see People v Miller, 190 AD3d1029, 1030 [2021]; People vFeltz, 190 AD3d 1027, 1028-1029 [2021]). Moreover, the challenges in connection withthe effective assistance of counsel, including that counsel failed to properly advise defendant onvarious matters, relate to matters outside the record and are thus more appropriately resolved in aCPL article 440 motion (see People v Feltz, 190 AD3d at 1029; People v Gamble, 190 AD3d 1022,1025 [2021], lv denied 36 NY3d 1097 [2021]).
Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.