Opinion
108911
09-27-2018
The PEOPLE of the State of New York, Respondent, v. Douglas RIVERA, Appellant.
Carolyn B. George, Albany, for appellant, and appellant pro se. Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.
Carolyn B. George, Albany, for appellant, and appellant pro se.
Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.
Before: Garry, P.J., McCarthy, Lynch, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered August 24, 2015, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
In full satisfaction of a five-count indictment and additional potential charges, defendant agreed to plead guilty to one count of burglary in the second degree in exchange for a prison term of 14 years followed by five years of postrelease supervision. The plea agreement also included a waiver of the right to appeal. Defendant subsequently pleaded guilty to burglary in the second degree, and County Court – after rejecting defense counsel's plea for leniency – imposed the contemplated prison term. This appeal ensued.
County Court did not explain "that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty" ( People v. White , 163 A.D.3d 1358, 1358, 78 N.Y.S.3d 527 [2018] ), a copy of the written waiver executed by defendant is not included in the record before this Court (see People v. Barnhill , 135 A.D.3d 1247, 1248, 23 N.Y.S.3d 487 [2016] ) and County Court failed to ascertain whether "defendant had read the waiver, was aware of its contents or had discussed it with counsel" ( People v. Larock , 139 A.D.3d 1241, 1242, 31 N.Y.S.3d 665 [2016], lv denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ). As County Court's brief inquiries of defendant "fell short of ensuring that defendant appreciated the [appellate] right that he was relinquishing and understood the consequences thereof" ( People v. Mallard , 163 A.D.3d 1350, 1351, 82 N.Y.S.3d 653 [2018] ), we agree with defendant that his waiver of the right to appeal was invalid (see id. ). Although the invalid waiver does not preclude defendant's claim that the sentence imposed is harsh and excessive (see People v. Levielle , 161 A.D.3d 1391, 1392, 77 N.Y.S.3d 575 [2018] ), upon consideration of the entire record, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see e.g. People v. Suddard , 164 A.D.3d 950, 951, 77 N.Y.S.3d 910, 911 [2018] ).
We further reject defendant's remaining contentions, raised in his pro se brief. Defendant's challenges to the voluntariness and factual sufficiency of his plea are unpreserved for our review absent record evidence of an appropriate postallocution motion (see People v. Burks , 163 A.D.3d 1286, 1287, 80 N.Y.S.3d 733 [2018] ; People v. Leflore , 154 A.D.3d 1164, 1165, 64 N.Y.S.3d 148 [2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ); his ineffective assistance of counsel claim – to the extent that it impacts upon the voluntariness of his plea – is similarly unpreserved (see People v. Haverly , 161 A.D.3d 1483, 1484, 74 N.Y.S.3d 774 [2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 864, 109 N.E.3d 1164, 2018 WL 4331806 [Aug. 15, 2018] ; People v. Duggins , 161 A.D.3d 1445, 1446, 77 N.Y.S.3d 765 [2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 863, 109 N.E.3d 1163, 2018 WL 4331912 [Aug. 9, 2018] ). Further, given that defendant did not make any statements during the plea colloquy that negated an element of the subject crime, cast doubt upon his guilt or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement does not apply (see People v. Kruppenbacher , 163 A.D.3d 1266, 1267, 80 N.Y.S.3d 740 [2018] ; People v. Lamb , 162 A.D.3d 1395, 1396, 80 N.Y.S.3d 520 [2018] ). Additionally, defendant's jurisdictional arguments are unavailing, as any challenge to the sufficiency of the indictment is precluded by defendant's guilty plea (see e.g. People v. Brice , 146 A.D.3d 1152, 1153–1154, 46 N.Y.S.3d 282 [2017], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017] ), and any argument addressed to the factual sufficiency of his allocution is unpreserved (cf. People v. Quinones , 51 A.D.3d 1226, 1227, 857 N.Y.S.2d 372 [2008], lv denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ). The balance of defendant's pro se claims, including his assertion that he was denied due process, have been examined and found to lack merit.ORDERED that the judgment is affirmed.
Garry, P.J., McCarthy, Lynch, Devine and Pritzker, JJ., concur.