People v. Avera

• Decision Date: 25 March 2021
• Docket Number: 109263
• Citation: 192 A.D.3d 1382,145 N.Y.S.3d 199
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert AVERA, Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1382
145 N.Y.S.3d 199

The PEOPLE of the State of New York, Respondent,
v.
Robert AVERA, Appellant.

109263

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 5, 2021
Decided and Entered: March 25, 2021

145 N.Y.S.3d 200

Aaron A. Louridas, Delmar, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered December 15, 2016, convicting

145 N.Y.S.3d 201

defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

As a result of his participation in two drug sales in Schenectady County, defendant was charged in a six-count indictment. After County Court denied his motion to dismiss the indictment based on an alleged violation of his speedy trial rights, defendant pleaded guilty to a reduced count of criminal sale of a controlled substance in the third degree in satisfaction of the indictment. The plea bargain included a negotiated sentence and restitution and required defendant to waive his right to appeal. County Court imposed the agreed-upon prison sentence of six years, to be followed by three years of postrelease supervision. Defendant appeals.

Initially, defendant's appeal waiver is invalid, as the written waiver is overbroad and inaccurate, and County Court's oral colloquy did not ensure that defendant knowingly, intelligently and voluntarily waived this important right (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Anderson , 184 A.D.3d 1020, 1020–1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 152 N.E.3d 1165 [2020] ; People v. Barrales , 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [2020] ). Nevertheless, due to defendant's failure to file an appropriate postallocution motion, his challenges to the voluntariness of his plea, the factual sufficiency of the plea allocution and his claim of ineffective assistance of counsel – to the extent that it impacts the voluntariness of his plea – are unpreserved for appellate review, and the narrow exception to the preservation rule was not triggered here (see People v. Anderson, 184 A.D.3d at 1021, 124 N.Y.S.3d 589 ; People v. Sabin, 179 A.D.3d 1401, 1402–1403, 118 N.Y.S.3d 769 [2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 628, 149 N.E.3d 389 [2020] ; People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019] ; People v. Burks, 163 A.D.3d 1286, 1287, 80 N.Y.S.3d 733 [2018], lv denied 32 N.Y.3d 1063, 89 N.Y.S.3d 117, 113 N.E.3d 951...