| People v McCoy |
| 2021 NY Slip Op 05366 [198 AD3d 1021] |
| October 7, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edward McCoy, Appellant. |
Erin C. Morigerato, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered June 20, 2018, convicting defendant upon his plea of guilty ofthe crime of burglary in the second degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to burglary in thesecond degree and purportedly waived his right to appeal. County Court sentenceddefendant to the agreed-upon prison term of 10 years, to be followed by five years ofpostrelease supervision. Defendant appeals.
We affirm. Defendant argues that his waiver of the right to appeal was invalid. Wedisagree. The record reflects that defendant was advised that a waiver of the right toappeal was a condition of the plea agreement and County Court advised defendant of theseparate and distinct nature of the right to appeal and distinguished it from thetrial-related rights that are automatically forfeited by pleading guilty, and defendantaffirmed his understanding thereof (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Thaxton, 191 AD3d1166, 1167 [2021], lv denied 37 NY3d 960 [2021]). Defendant alsoexecuted a written waiver after reviewing it with counsel and assuring County Court thathe understood it (see People vBotts, 191 AD3d 1044, 1044-1045 [2021], lv denied 36 NY3d 1095[2021]; People v Burnett,186 AD3d 1837, 1838 [2020], lv denied 36 NY3d 970 [2020]). Althoughdefendant contends that the provision in the written waiver that it applied "to all legalissues that can be waived under the law" erroneously advised him of an absolute bar tothe pursuit of potential remedies, "we are satisfied that 'the counseled defendantunderstood the distinction that some appellate review survived' " (People v Thomas, 190 AD3d1157, 1158 [2021], quoting People v Thomas, 34 NY3d 545, 561 [2019]; compare People v Brito, 184AD3d 900, 900-901 [2020]). Accordingly, we find that defendant knowingly,intelligently and voluntarily waived the right to appeal (see People v Hemingway, 192AD3d 1266, 1266-1267 [2021], lv denied 37 NY3d 956 [2021]; People vThomas, 190 AD3d at 1158-1159). Given the valid appeal waiver, defendant'schallenge to the severity of the sentence is precluded (see People v Carter, 191 AD3d 1168, 1170 [2021]; People v Pribble, 190 AD3d1194, 1195 [2021]).
Although defendant's assertion that his guilty plea was not knowing, intelligent andvoluntary survives his appeal waiver, this claim has not been preserved for our review asthe record does not disclose that he made an appropriate postallocution motion despitehaving ample time to do so (seePeople v Payson, 189 AD3d 1820, 1820 [2020], lv denied 36 NY3d1099 [2021]; People vAlmonte, 179 AD3d 1222, 1224 [2020], lv denied 35 NY3d 940[2020]). Defendant's contention that he received ineffective assistance of counsel, to theextent that it implicates the voluntariness of his plea, also survives the appeal waiver butis similarly unpreserved (seePeople v Vilbrin, 183 AD3d 1012, 1013 [2020],[*2]lv denied 35 NY3d 1049 [2020]; People v White, 172 AD3d1822, 1823-1824 [2019], lv denied 33 NY3d 1110 [2019]). Moreover,defendant did not make any statements during the plea colloquy that were inconsistentwith his guilt, negated an essential element of the charged crime or otherwise called intoquestion the voluntariness of his plea and, therefore, the narrow exception to thepreservation requirement does not apply (see People v Crossley, 191 AD3d 1046, 1047 [2021], lvdenied 37 NY3d 991 [2021]; People v Weidenheimer, 181 AD3d 1096, 1097 [2020]). Assuch, defendant's contention that County Court failed to advise him of the constitutionaltrial-related rights that were automatically forfeited by pleading guilty was not preserved(see People v Conceicao, 26NY3d 375, 382 [2015]; People v Weidenheimer, 181 AD3d at 1097). In anyevent, the record reflects that defendant was fully advised of and understood the waiverof his trial-related rights (see People v Conceicao, 26 NY3d at 381-384; People v Evans, 159 AD3d1226, 1227 [2018], lv denied 31 NY3d 1081 [2018]). Finally, the balance ofdefendant's ineffective assistance of counsel claim, including that counsel failed toinvestigate the facts of his case, research the applicable law or advise him of potentialdefenses, involve matters outside the record that are more properly the subject of a CPLarticle 440 motion (see People vDrake, 179 AD3d 1221, 1222 [2020], lv denied 35 NY3d 941 [2020];People v White, 172 AD3d at 1824).
Garry, P.J., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.