| People v Loya |
| 2022 NY Slip Op 02589 [204 AD3d 1255] |
| April 21, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert J. Loya Jr., Appellant. |
Erin C. Morigerato, Albany, for appellant.
Merri Turk Lasky, Special Prosecutor, Plainview, for respondent.
Fisher, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered August 12, 2019, convicting defendant upon his plea of guilty of the crime of forgery inthe second degree.
In full satisfaction of a 10-count indictment, defendant agreed to plead guilty to one count offorgery in the second degree with the understanding that he would be sentenced to a prison termof either 2
We agree with defendant that his waiver of the right to appeal is invalid, as the writtenwaiver executed by defendant contained overbroad language purporting to encompass allpotential appellate issues, and County Court's brief oral colloquy with defendant was insufficientto permit a finding that "defendant understood the distinction that some appellate reviewsurvived" (People v Smith, 193AD3d 1114, 1115 [2021] [internal quotation marks and citation omitted]; see People v Vivona, 199 AD3d1165, 1166 [2021]; People vMosher, 191 AD3d 1170, 1171 [2021], lv denied 37 NY3d 959 [2021]; People v Gervasio, 190 AD3d1190, 1190-1191 [2021]). Although defendant's challenge to the perceived severity of hissentence is therefore not precluded (see People v Gervasio, 190 AD3d at 1191), wediscern no extraordinary circumstances or abuse of discretion warranting a reduction of theagreed-upon sentence imposed (see generally People v Mosher, 191 AD3d at 1171; People v Deming, 190 AD3d1193, 1194 [2021], lv denied 36 NY3d 1119 [2021]).
As to the balance of defendant's claims, his challenge to the voluntariness of his plea isunpreserved for our review absent evidence of an appropriate postallocution motion (see People v Linear, 200 AD3d1498, 1499 [2021], lv denied 38 NY3d 951 [2022]; People vHaynes, 194 AD3d 1310, 1310 [2021]), and the narrow exception to the preservationrequirement was not triggered here, "as defendant did not make any statements during the pleacolloquy that negated an element of the charged crime, were inconsistent with his guilt orotherwise called into question the voluntariness of his plea" (People v Murray, 197 AD3d 1355, 1356 [2021], lv denied38 NY3d 929 [2022]; see People vGuerrero, 194 AD3d 1258, 1260 [2021], lv denied 37 NY3d 992 [2021]). In anyevent, "the fact that County Court apprised defendant of his maximum potential sentencingexposure did not amount to coercion" (People v Apelles, 185 [*2]AD3d 1298, 1299 [2020] [internal quotation marks, brackets andcitation omitted], lv denied 35 NY3d 1092 [2020]). To the extent that defendant'sineffective assistance of counsel claim impacts upon the voluntariness of his plea, such claim issimilarly unpreserved (see People vDowns, 194 AD3d 1118, 1119 [2021], lv denied 37 NY3d 971 [2021]; People v Thompson, 193 AD3d1186, 1187 [2021]), and defendant's assertions that counsel failed to properly investigate hiscase, locate potential witnesses and/or explore viable defenses involve matters outside of therecord that, in turn, are more properly the subject of a CPL article 440 motion (see People v McClendon, 199 AD3d1233, 1235 [2021]; People vMcCoy, 198 AD3d 1021, 1023 [2021], lv denied 37 NY3d 1162 [2022]).Defendant's remaining arguments have been examined and found to be lacking in merit.
Egan Jr., J.P., Clark, Pritzker and Ceresia, JJ., concur. Ordered that the judgment isaffirmed.