Opinion
110961
10-05-2023
The PEOPLE of the State of New York, Respondent, v. Keith STEVENS, Appellant.
Tara B. Wells, Albany, for appellant. P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Tara B. Wells, Albany, for appellant.
P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Before: Clark, J.P., Aarons, Reynolds Fitzgerald, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a judgment of the County Court of Albany County (Peter A. Lynch, J.), rendered August 27, 2018, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
Defendant was charged by indictment with three counts of criminal sale of a controlled substance in the third degree. In satisfaction thereof, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree and waived his right to appeal, in exchange for a determinate prison sentence between 6 and 12 years, followed by a period of postrelease supervision between 1½ and 3 years. Pursuant to the terms of the plea agreement, County Court thereafter sentenced defendant, as a second felony drug offender, to 10 years in prison and three years of postrelease supervision. Defendant appeals.
We affirm. Defendant challenges the voluntariness of his plea based upon his admission at sentencing to having a history of substance abuse. Defendant's claims in this regard, however, are unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Nack, 200 A.D.3d 1197, 1198, 157 N.Y.S.3d 590 [3d Dept. 2021], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 365, 188 N.E.3d 557 [2022] ; People v. Dickerson, 198 A.D.3d 1190, 1192–1193, 156 N.Y.S.3d 526 [3d Dept. 2021] ; People v. Cunningham, 23 A.D.3d 754, 755, 803 N.Y.S.2d 788 [3d Dept. 2005] ). The narrow exception to the preservation requirement is inapplicable here, as the record does not disclose that defendant made any statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of the plea (see People v. West, 210 A.D.3d 1194, 1195, 178 N.Y.S.3d 266 [3d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 290, 204 N.E.3d 1072 [2023] ; People v. Downs, 194 A.D.3d 1118, 1119, 146 N.Y.S.3d 695 [3d Dept. 2021], lv denied 37 N.Y.3d 971, 150 N.Y.S.3d 694, 172 N.E.3d 806 [2021] ). Notably, defendant actively participated in the plea proceedings and nothing in the record suggests that he was incapable of understanding the nature of his plea at that time (see People v. Cole, 166 A.D.3d 1219, 1220, 86 N.Y.S.3d 808 [3d Dept. 2018], lv denied 33 N.Y.3d 946, 100 N.Y.S.3d 171, 123 N.E.3d 830 [2019] ; People v. Buie, 128 A.D.3d 1281, 1281, 10 N.Y.S.3d 351 [3d Dept. 2015] ; People v. Kaszubinski, 55 A.D.3d 1133, 1134–1135, 865 N.Y.S.2d 772 [3d Dept. 2008], lv denied 12 N.Y.3d 855, 881 N.Y.S.2d 667, 909 N.E.2d 590 [2009] ). Although defendant stated at sentencing that "[he] didn't know what [he] was doing," this statement "was designed to elicit [County Court's] sympathy and was not an assertion of innocence" ( People v. Bruno, 147 A.D.2d 490, 490, 537 N.Y.S.2d 588 [2d Dept. 1989] ). Moreover, after defendant disclosed his substance abuse history in arguing for a lower sentence, the court confirmed with defense counsel that there was "[n]o legal cause" why sentencing should not proceed.
To the extent that defendant's allegations regarding his mental state at the time of his guilty plea concern matters outside the record, they are more properly raised in the context of a CPL article 440 motion (see CPL 440.10[1][e] ; see e.g. People v. Brown, 23 A.D.3d 702, 702–703, 803 N.Y.S.2d 302 [3d Dept. 2005], lv denied 6 N.Y.3d 774, 811 N.Y.S.2d 341, 844 N.E.2d 796 [2006] ).
Defendant's remaining challenge to the severity of the sentence is precluded by the unchallenged waiver of appeal (see People v. DeJesus, 210 A.D.3d 1195, 1196, 176 N.Y.S.3d 887 [3d Dept. 2022], lv denied 39 N.Y.3d 985, 181 N.Y.S.3d 195, 201 N.E.3d 812 [2022] ; People v. Parker, 173 A.D.3d 1557, 1559, 104 N.Y.S.3d 390 [3d Dept. 2019] ).
Clark, J.P., Reynolds Fitzgerald, Ceresia and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.