| People v Murray |
| 2021 NY Slip Op 04929 [197 AD3d 1355] |
| September 2, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Oshapha Murray, Appellant. |
Law Offices of Danielle Neroni, Albany (Angela Kelley of counsel), for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered July 13, 2017, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree.
Defendant was charged in a superseding indictment with attempted murder in the seconddegree, attempted assault in the first degree, criminal possession of a weapon in the seconddegree (two counts), criminal possession of a controlled substance in the third degree andcriminal possession of a controlled substance in the fourth degree. After twice rejecting otherplea offers, and prior to the commencement of certain scheduled suppression hearings, defendantwaived his right to appeal and pleaded guilty—in full satisfaction of the supersedingindictment—to one count of criminal possession of a weapon in the second degree withthe understanding that he would be sentenced to a prison term of 10 years followed by five yearsof postrelease supervision. County Court thereafter sentenced defendant as a second felonyoffender to the contemplated term of imprisonment, and this appeal ensued.
We affirm. Although defendant's challenge to the voluntariness of his plea survives hisuncontested waiver of the right to appeal, this argument is unpreserved for our review absentevidence of an appropriate postallocution motion (see People v Crossley, 191 AD3d 1046, 1047 [2021]; People v Danzy, 182 AD3d 920,921 [2020], lv denied 35 NY3d 1043 [2020]). The narrow exception to the preservationrequirement does not apply, as defendant did not make any statements during the plea colloquythat negated an element of the charged crime, were inconsistent with his guilt or otherwise calledinto question the voluntariness of his plea (see People v Aponte, 190 AD3d 1031, 1032 [2021], lvdenied 37 NY3d 953 [2021]; Peoplev Weidenheimer, 181 AD3d 1096, 1097 [2020]).
Defendant's ineffective assistance of counsel claim—insofar as it is premised uponcounsel's failure to proceed with the scheduled suppression hearings—does not impactupon the voluntariness of defendant's plea and, therefore, is precluded by his unchallenged appealwaiver (see People v Buckler, 80AD3d 889, 890 [2011], lv denied 17 NY3d 804 [2011]; People v Whitehead, 73 AD3d1340, 1341 [2010], lv denied 15 NY3d 779 [2010]; People v Leigh, 71 AD3d 1288,1288 [2010], lv denied 15 NY3d 775 [2010]). To the extent that such claim may be saidto have "a bearing upon the voluntariness of defendant's plea," it survives the appeal waiver butnonetheless is unpreserved for our review (People v White, 122 AD3d 1005, 1006 [2014]; see People v Chaney, 160 AD3d1281, 1285 [2018], lv denied 31 NY3d 1146 [2018]). In any event, "by pleadingguilty before [the] suppression hearing[s were] held, 'defendant precluded the making of a recordand, in consequence, foreclosed the possibility of appellate review' of all claims related to thepending suppression motion[s]" (Peoplev Ball, 152 AD3d 973, [*2]974 [2017], lv denied30 NY3d 978 [2017], quoting People v Fernandez, 67 NY2d 686, 688 [1986]; see People v Cochran, 112 AD3d997, 998 [2013], lv denied 23 NY3d 961 [2014]; People v Whitted, 12 AD3d 840, 841 [2004], lv denied 4NY3d 769 [2005]). Accordingly, the merits of defendant's various suppression arguments are notproperly before us.
Garry, P.J., Egan Jr., Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.