People v. Baxter

• Decision Date: 05 October 2017
• Citation: 60 N.Y.S.3d 855 (Mem),154 A.D.3d 1010
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael BAXTER, Appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 1010

60 N.Y.S.3d 855 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Michael BAXTER, Appellant.

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

Oct. 5, 2017.

Stephen W. Herrick, Public Defender, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: PETERS, P.J., EGAN JR., DEVINE, MULVEY and PRITZKER, JJ.

DEVINE, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 9, 2015, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

In satisfaction of various pending charges, defendant pleaded guilty to a superior court information charging him with attempted criminal possession of a weapon in the second degree and waived his right to appeal. County Court sentenced defendant, a second felony offender, to the agreed-upon prison term of three years to be followed by five years of postrelease supervision. Defendant appeals.

We are unpersuaded by defendant's contention that the waiver of the right to appeal is invalid. During the plea colloquy, County Court explained the separate and distinct nature of the waiver of the right to appeal from the trial-related rights forfeited by the guilty plea. Furthermore, the record reflects that defendant, after a discussion with defense counsel, executed a written appeal waiver in open court and acknowledged that he understood it. In view of the foregoing, defendant knowingly, voluntarily and intelligently waived his right to appeal his conviction and sentence (see People v. Hess, 150 A.D.3d 1560, 1560, 52 N.Y.S.3d 686 [2017] ).

Although defendant's valid appeal waiver does not preclude his challenge to the voluntariness of his plea, the record does not reflect that he preserved that challenge via an appropriate postallocution motion (see People v. McRae, 150 A.D.3d 1328, 1329, 51 N.Y.S.3d 434 [2017], lv. denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ). Defendant did not make any statements during the plea colloquy so as to trigger the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Dolberry, 147 A.D.3d 1149, 1150, 46 N.Y.S.3d 437 [2017], lv. denied 29 N.Y.3d 1078, – ––N.Y.S.3d ––––, ––– N.E.3d –––– [2017] ). Defendant's further attack upon the severity of the sentence imposed is foreclosed by the valid appeal waiver (see People v. Hess, 150 A.D.3d at 1560, 52 N.Y.S.3d 686).

To the extent that defendant's ineffective assistance of counsel claim implicates the voluntariness of his plea and therefore survives the appeal waiver, such issue is also unpreserved absent an appropriate postallocution motion (see CPL 330.30 ; People v. Wood, 150 A.D.3d 1544, 1545, 52 N.Y.S.3d 682 [2017] ; People v. Payne, 148 A.D.3d 1226, 1227, 49 N.Y.S.3d 761 [2017], lv. denied 29 N.Y.3d 1084, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2017] ). The remainder of defendant's ineffective assistance of counsel claim concerns matters outside the record that cannot be addressed on direct appeal (see People v. Clark, 135 A.D.3d 1239, 1240, ...