People v. Burks
| Decision Date | 19 July 2018 |
| Docket Number | 109045 |
| Citation | 80 N.Y.S.3d 733,163 A.D.3d 1286 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Matthieu A. BURKS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
163 A.D.3d 1286
80 N.Y.S.3d 733
The PEOPLE of the State of New York, Respondent,
v.
Matthieu A. BURKS, Appellant.
109045
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: May 30, 2018
Decided and Entered: July 19, 2018
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon Eddy of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered December 9, 2014, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with attempted criminal sale of a controlled substance in the third degree. He pleaded guilty to this crime and waived his right to appeal. In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to 3½ years in prison to be followed by 1½ years of postrelease supervision. Defendant now appeals.
Initially, defendant's challenges to the voluntariness and factual sufficiency of his guilty plea have not been preserved for our review, as the record does not disclose that he made an appropriate postallocution motion (see People v. Muller, 159 A.D.3d 1232, 1233, 73 N.Y.S.3d 279 [2018] ; People v. Bailey, 158 A.D.3d 948, 948, 71 N.Y.S.3d 667 [2018] ). For the same reason, his claim of ineffective assistance of counsel – to the extent that it impacts the voluntariness of his plea – is also unpreserved (see People v. Gause, 159 A.D.3d 1277, 1277, 70 N.Y.S.3d 871 [2018] ; People v. Muller, 159 A.D.3d at 1233, 73 N.Y.S.3d 279 ).1 With regard to these contentions, we find that the narrow exception to the preservation rule is inapplicable, as defendant did not make any statements during the plea colloquy that cast doubt
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