People v. Bethea

Citation133 A.D.3d 1033,19 N.Y.S.3d 191 (Mem),2015 N.Y. Slip Op. 08461
PartiesThe PEOPLE of the State of New York, Respondent, v. Terell BETHEA, Appellant.
Decision Date19 November 2015
CourtNew York Supreme Court Appellate Division

133 A.D.3d 1033
19 N.Y.S.3d 191 (Mem)
2015 N.Y. Slip Op. 08461

The PEOPLE of the State of New York, Respondent,
v.
Terell BETHEA, Appellant.

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

Nov. 19, 2015.


Sandra M. Colatosti, Albany, for appellant, and appellant pro se.

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

Opinion

McCARTHY, J.P.

133 A.D.3d 1033

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered June 5, 2013, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

In full satisfaction of a six-count indictment, defendant pleaded guilty to murder in the second degree and waived his right to appeal. In accordance with the plea agreement, County Court sentenced defendant to a prison term of 17 years to life and he was ordered to pay restitution. Defendant now appeals.

We affirm. County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea and defendant executed a counseled written waiver in open court. Accordingly, defendant validly waived the right to appeal his conviction and sentence (see People v. Lopez,6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Burritt,127 A.D.3d 1433, 1434, 6 N.Y.S.3d 806 [2015]). Therefore, his claim that his sentence is harsh and excessive is precluded

as his “valid waiver of the right to appeal includes waiver of the right to invoke [this Court's] interest-of-justice jurisdiction to reduce the sentence” (

People v. Lopez,6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; accord People v. Morrison,106 A.D.3d 1201, 1202, 964 N.Y.S.2d 761 [2013], lv. denied23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014]). To the extent that defendant's claims challenging the integrity of the grand jury proceedings survive his guilty plea, such claims are not reviewable inasmuch as the minutes of the proceedings were not included in the record (see People v. Barill,120 A.D.3d 951, 952, 991 N.Y.S.2d 214 [2014], lv. denied24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014]; see generally People v. Hawkins,113 A.D.3d 1123, 1125, 978 N.Y.S.2d 571 [2014], lv. denied22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014]).

Although defendant's claim that his plea was induced by an unfulfilled promise implicates the voluntariness of his plea and survives his appeal waiver, it is unpreserved for our review as there is no indication in the record that he made an appropriate postallocution motion (see People v. Benson,100 A.D.3d 1108, 1108–1109, 953 N.Y.S.2d 380 [2012]; People v. Hall,89 A.D.3d 1323, 1323, 932 N.Y.S.2d 919 [2011]), and he did not make any statements during the plea allocution that triggered the narrow exception to the preservation rule (see People v. Merrill,123 A.D.3d 1339, 1340, 999 N.Y.S.2d 265 [2014], lv. denied26 N.Y.3d 970, 18 N.Y.S.2d 606, 40 N.E.3d 584 [2015]; People v. Benson,100 A.D.3d at 1109, 953 N.Y.S.2d 380). Similarly, defendant's claim of ineffective assistance of counsel—to the extent that it impacts upon the voluntariness of his plea—is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Smith,119 A.D.3d 1088, 1089, 988 N.Y.S.2d 724 [2014], lv. denied24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014]; People v. Watson,110 A.D.3d 1110, 1111, 972 N.Y.S.2d 352 [2013], lv. denied22 N.Y.3d 1160, 984 N.Y.S.2d 644, 7 N.E.3d 1132 [2014]). Finally, defendant's challenge to the amount of restitution awarded is also unpreserved for our review as he did not request a...

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  • People v. Melendez, 106576.
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    • April 7, 2016
    ...for review since he failed to request a hearing and did not otherwise object to such amount at sentencing (see People v. Bethea, 133 A.D.3d 1033, 1034, 19 N.Y.S.3d 191 [2015] ; People v. Bressard, 112 A.D.3d 988, 989, 976 N.Y.S.2d 302 [2013], lv. denied 22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N......
  • People v. Goldman
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    ...at 1061, 3 N.Y.S.3d 444 ), it is also not preserved for our review given the absence of a postallocution motion (see People v. Bethea, 133 A.D.3d 1033, 1034, 19 N.Y.S.3d 191 [2015] ; People v. Jimenez, 96 A.D.3d 1109, 1110, 945 N.Y.S.2d 583 [2012] ). Furthermore, defendant's allegations reg......
  • People v. Tchiyuka
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    • New York Supreme Court — Appellate Division
    • February 1, 2019
    ...be fulfilled. Preliminarily, we note that defendant's contention survives his waiver of the right to appeal (see People v. Bethea , 133 A.D.3d 1033, 1034, 19 N.Y.S.3d 191 [3d Dept. 2015], lv denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ; People v. Williams , 84 A.D.3d 1417, ......
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