| People v Pompey |
| 2022 NY Slip Op 01853 [203 AD3d 1411] |
| March 17, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Messiah J. Pompey, Appellant. |
Law Offices of Danielle Neroni, Albany (Angela Kelley of counsel), for appellant.
Clea Weiss, Special Prosecutor, Ithaca, for respondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Saratoga County(Murphy III, J.), rendered February 18, 2021, convicting defendant upon his plea of guilty of thecrime of promoting a sexual performance by a child.
Defendant was charged with possessing a sexual performance by a child after a video wasfound on his cell phone depicting a young girl performing oral sex on an adult male. Following asearch of defendant's electronics and accounts, hundreds of images and video recordings of childpornography were reportedly discovered, and he was charged with promoting a sexualperformance by a child. Defendant thereafter waived indictment and agreed to be prosecutedpursuant to a superior court information charging him with one count of promoting a sexualperformance by a child pursuant to a plea agreement that required a waiver of appeal, whichdefendant executed during the plea allocution. Consistent with the plea agreement, defendantpleaded guilty and was sentenced to the agreed-upon prison term of 2 to 6 years. Defendantappeals.
We affirm. Initially, we agree with defendant that his waiver of appeal is invalid. Althoughthe written waiver of appeal indicated that it "encompasses most issues arising from this criminalproceeding" and listed legal issues that would be foreclosed by the appeal waiver, it alsoprovided—at the end of the list—that defendant was unqualifiedly waiving his rightto appeal "[a]ny other matters which I may have an appeal as of right or otherwise." CountyCourt's oral colloquy did not attempt to clarify that the appeal waiver was not a total bar to takingan appeal. Given the mischaracterization of the appellate rights waived as encompassing anabsolute bar to taking a first-tier direct appeal, and the failure to clarify that appellate reviewremained available for certain issues, we are unable to find that defendant understood the natureof the appellate rights being waived and, thus, the waiver is not enforceable (see People v Thomas, 34 NY3d545, 558-559, 564-566 [2019]; seealso People v Shanks, 37 NY3d 244, 251-253 [2021]; People v Bisono, 36 NY3d 1013,1017 [2020]). Accordingly, defendant's challenge to the severity of the sentence is not precluded.However, upon review of the record and the seriousness of the underlying conduct, we find noextraordinary circumstances or abuse of discretion warranting a reduction of the agreed-uponsentence in the interest of justice (see CPL 470.15 [6] [b]; People v Deming, 190 AD3d1193, 1194 [2021], lv denied 36 NY3d 1119 [2021]).
Defendant's challenge to the voluntariness of his guilty plea is unpreserved for our reviewabsent evidence of an appropriate postallocution motion, despite ample time to make such amotion prior to sentencing (see People vWilliams, 27 NY3d 212, 214, 219-221 [2016]; People v Conceicao, 26 NY3d 375, 381-382 [2015]; seealso CPL 220.60 [3]). Moreover, defendant did not make any statements during the pleacolloquy that were inconsistent [*2]with his guilt, negated anessential element of the charged crime or otherwise called into question the voluntariness of hisplea and, therefore, the narrow exception to the preservation requirement does not apply (seePeople v Williams, 27 NY3d at 214, 220-222; People v Lopez, 71 NY2d 662, 666[1988]). Were we to address his claim despite the lack of preservation, we would find thatdefendant, in pleading guilty, made a "knowing, voluntary and intelligent choice amongalternative courses of action" (People v Conceicao, 26 NY3d at 382), after beinginformed of the plea terms and waiving the constitutional trial-related rights forfeited by hisguilty plea, which he indicated he understood and accepted (see Boykin v Alabama, 395US 238, 243 [1969]; People vTyrell, 22 NY3d 359, 361, 365 [2013]; People v Sabin, 179 AD3d 1401, 1403 [2020], lv denied 35NY3d 995 [2020]). He was also expressly advised that his waiver of preindictment discovery wasnot a condition of his guilty plea (see CPL 245.25 [1]).
Defendant's contention that he was deprived of the effective assistance of counsel, which islargely based upon matters outside of the record on appeal such as what counsel investigated oradvised him, is more properly raised in a motion pursuant to CPL article 440 (see People v Huebsch, 199 AD3d1174, 1176 [2021], lv denied 37 NY3d 1161 [2022]). To the extent that defendantargues that counsel was ineffective in permitting him to waive discovery, this claim isunpreserved as it was not raised prior to sentencing and, in any event, the record reflects that thePeople complied with their disclosure obligations. Moreover, "[i]n the context of a guilty plea, adefendant has been afforded meaningful representation when he or she receives an advantageousplea and nothing in the record casts doubt upon the apparent effectiveness of counsel" (People v LaPierre, 195 AD3d1301, 1306 [2021] [internal quotation marks and citation omitted]). Were we to address thisclaim on the record before us, we would find that counsel secured a favorable plea deal thatavoided numerous other charges and potential consecutive sentencing, and nothing casts doubton counsel's apparent effectiveness. Defendant's remaining contentions have been reviewed andfound to be without merit.
Egan Jr., J.P., Aarons, Pritzker and Ceresia, JJ., concur. Ordered that the judgment isaffirmed.