People v. Carroll
| Citation | 172 A.D.3d 1821,99 N.Y.S.3d 520 |
| Decision Date | 30 May 2019 |
| Docket Number | 108689 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Javon CARROLL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
172 A.D.3d 1821
99 N.Y.S.3d 520
The PEOPLE of the State of New York, Respondent,
v.
Javon CARROLL, Appellant.
108689
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: April 24, 2019
Decided and Entered: May 30, 2019
Noreen McCarthy, Keene Valley, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), for respondent.
Before: Lynch, J.P., Mulvey, Devine, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Rumsey, J.
Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered July 13, 2016, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fourth degree (two counts).
In satisfaction of a four-count indictment, defendant agreed to plead guilty to criminal sale of a controlled substance in the fourth degree (two counts) with a recommended prison term of four years upon each conviction followed by three years of postrelease supervision. The contemplated prison terms would run concurrently with one another but consecutively to the prison term that defendant then was serving. Consistent with the terms of the plea agreement, which also required defendant to waive his right to appeal, defendant pleaded guilty to the two sale counts, and County Court thereafter sentenced defendant as a second felony offender to the recommended terms of imprisonment. Defendant appeals.
We need not consider the validity of defendant's appeal waiver (see People v. Rivera, 167 A.D.3d 1324, 1324, 88 N.Y.S.3d 915 [2018] ; People v. Guynup, 159 A.D.3d 1223, 1224, 73 N.Y.S.3d 645 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018] ), as his challenge to the voluntariness of his plea and his related ineffective assistance of counsel claim (to the extent that it impacts upon the voluntariness of his plea) survive even a valid appeal waiver but are unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Moore, 169 A.D.3d 1110, 1112, 93 N.Y.S.3d 464 [2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 233, 124 N.E.3d 722, 2019 WL 2070899 [Apr. 25, 2019] ; People v. Rivera, 167 A.D.3d at 1324, 88 N.Y.S.3d 915 ; People v. Spears, 78 A.D.3d 1380, 1380, 911 N.Y.S.2d 245 [2010] ). In this regard, "defendant's reliance upon his unsworn statements contained within a postplea...
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