People v. Beverly

• Decision Date: 17 March 2016
• Citation: 27 N.Y.S.3d 724,137 A.D.3d 1421
• Parties: The PEOPLE of the State of New York, Respondent, v. Keon BEVERLY, Appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1421

27 N.Y.S.3d 724

The PEOPLE of the State of New York, Respondent,

v.Keon BEVERLY, Appellant.

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

March 17, 2016.

Aaron A. Louridas, Delmar, for appellant.

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

Before: PETERS, P.J., GARRY, ROSE and DEVINE, JJ.

ROSE

, J.

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered January 13, 2011, convicting defendant upon his plea of guilty of the crimes of assault in the second degree and perjury in the first degree.

In satisfaction of a 12–count indictment, defendant pleaded guilty to assault in the second degree and perjury in the first degree. He also waived his right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, defendant was sentenced as a second felony offender to four years in prison to be followed by five years of postrelease supervision on the assault conviction, and 3 to 6 years in prison on the perjury conviction, said sentences to run consecutively. Defendant now appeals.

Defendant's primary contention is that he was denied the effective assistance of counsel and that this rendered his guilty plea involuntary. Although this type of claim is not foreclosed by a valid waiver of the right to appeal, it has not been preserved for our review as there is no indication in the record that defendant made an appropriate postallocution motion (see People v. Broomfield, 128 A.D.3d 1271, 1271–1272, 9 N.Y.S.3d 733 [2015]

, lv. denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015] ; People v. Brown, 128 A.D.3d 1273, 1274, 9 N.Y.S.3d 735 [2015] ). Defendant next challenges the severity of the sentence—a challenge that is precluded by a valid waiver of the right to appeal. However, we find that the waiver here was invalid inasmuch as it does not appear that defendant was advised that the right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Pope, 129 A.D.3d 1389, 1389–1390, 14 N.Y.S.3d 512 [2015] ; People v. Burgette, 118 A.D.3d 1034, 1035, 986 N.Y.S.2d 362 [2014], lv. denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 [2015] ). Turning to the merits, we note that defendant has a lengthy criminal record and agreed to the sentence as part of a favorable plea agreement that exposed him to less time in prison than if he was convicted after trial. Accordingly, we find no abuse of discretion nor any...