| People v Wood |
| 2023 NY Slip Op 03125 [217 AD3d 1407] |
| June 9, 2023 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robert C. Wood, Appellant. |
Law Offices of Joseph Z. Amsel, PLLC, New York City (Joseph Z. Amsel ofcounsel), for defendant-appellant.
Brian D. Seaman, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered November 16, 2020. The judgment convicted defendant upon his plea of guiltyof course of sexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcourse of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [a]), defendant contends that his waiver of the right to appealis invalid because County Court failed to inform him that the right to appeal was separateand distinct from the rights automatically forfeited by his guilty plea and failed toidentify which appellate issues survived the waiver of appeal. We reject defendant'scontention.
Upon our review of the colloquy, we conclude that the court did not indicate todefendant that he automatically forfeited his right to appeal upon pleading guilty, butrather "engaged in a fuller colloquy, describing the nature of the right being waivedwithout lumping that right into the panoply of trial rights automatically forfeited uponpleading guilty and eliciting agreements of understanding from . . .defendant on multiple occasions" (People v Lopez, 6 NY3d 248, 257 [2006]). In addition,defendant's contention that his waiver of the right to appeal is invalid because the courtfailed to identify the precise claims that survived the waiver of appeal is without merit.No "particular litany" is required for a waiver of the right to appeal to be valid(id. at 256), although the "better practice" is for the court to use the ModelColloquy, which "neatly synthesizes . . . the governing principles" (People v Thomas, 34 NY3d545, 567 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020];see NY Model Colloquies, Waiver of Right to Appeal,https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver_of_Right_to_Appeal.pdf).Here, the court appropriately relied on the Model Colloquy almost verbatim (see People v Cromie, 187AD3d 1659, 1659 [4th Dept 2020], lv denied 36 NY3d 971 [2020]).
Defendant further contends that his plea was not knowing, intelligent, and voluntarybecause the court did not inform him, in advance, of the specific period of postreleasesupervision that would be imposed upon sentencing. Initially, as defendant correctlynotes, that contention survives a valid waiver of the right to appeal and defendant neednot preserve the issue by filing a postallocution motion (see People v Jordan, 67 AD3d1406, 1407-1408 [4th Dept 2009]). "A trial court has the constitutional duty toensure that a defendant, before pleading guilty, has a full understanding of what the pleaconnotes and its consequences" (People v Catu, 4 NY3d 242, 244-245 [2005] [internalquotation marks omitted]; seePeople v Turner, 24 NY3d 254, 258 [2014]). A period of postreleasesupervision "is a direct consequence of a criminal conviction," and therefore "adefendant pleading guilty to a determinate sentence must be aware of the postreleasesupervision component of that sentence in order to knowingly, voluntarily andintelligently choose among alternative courses of action" (Catu, 4 NY3d at 244,245; see People v Robinson,160 AD3d 774, 777 [2d Dept 2018]). Here, the court informed defendant during the[*2]plea colloquy that a period of postrelease supervisionwould be imposed and informed him of "the maximum potential duration of postreleasesupervision" (Robinson, 160 AD3d at 777; see People v Hernandez, 83 AD3d 1581, 1581 [4th Dept2011]). We conclude that defendant's contention that his plea was not knowing,intelligent, and voluntary because he was not informed of the exact period of postreleasesupervision that would be imposed is without merit (cf. People v Rodriguez, 132 AD3d 1374, 1374 [4th Dept2015]; Hernandez, 83 AD3d at 1581).
Defendant also contends that his plea was not knowing, intelligent, and voluntarybecause he was induced to plead guilty by the People's assurance that he would not beprosecuted federally for his conduct, which the People did not have the authority tofulfill. Although that contention survives the waiver of the right to appeal, defendantfailed to preserve the contention for our review "[b]y failing to move to withdraw hisplea or vacate the judgment of conviction" (People v Williams, 15 AD3d 863, 863-864 [4th Dept2005], lv denied 5 NY3d 771 [2005], lv denied upon reconsideration 5NY3d 811 [2005]). We decline to exercise our power to review the contention as amatter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Although defendant's contention that he received ineffective assistance of counselsurvives his plea and valid waiver of the right to appeal insofar as defendant "contendsthat the plea bargaining process was infected by [the] allegedly ineffective assistance orthat [he] entered the plea because of [his] attorney['s] allegedly poor performance" (People v Molski, 179 AD3d1540, 1540-1541 [4th Dept 2020] [internal quotation marks omitted], lvdenied 35 NY3d 972 [2020]), that contention involves matters outside the record andtherefore it is not reviewable on direct appeal (see People v Long, 151 AD3d 1886, 1886 [4th Dept2017]; People v Nichols, 21AD3d 1273, 1274 [4th Dept 2005], lv denied 6 NY3d 757 [2005];Williams, 15 AD3d at 864).
Finally, defendant's valid waiver of the right to appeal encompasses his challenge tothe severity of the sentence (see Lopez, 6 NY3d at 255). Present—Whalen,P.J., Lindley, Montour, Ogden and Greenwood, JJ.