People v. Clark

• Decision Date: 28 January 2016
• Citation: 23 N.Y.S.3d 481,135 A.D.3d 1239
• Parties: The PEOPLE of the State of New York, Respondent, v. Nahcere CLARK, Appellant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 1239

23 N.Y.S.3d 481

The PEOPLE of the State of New York, Respondent,

v.Nahcere CLARK, Appellant.

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

Jan. 28, 2016.

Aaron A. Louridas, Delmar, for appellant.

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

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

DEVINE, J.

Appeal from a judgment of the Supreme Court (Ceresia, J.), rendered January 24, 2014 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Pursuant to a negotiated agreement, defendant pleaded guilty to an indictment charging him with burglary in the second degree and waived his right to appeal. The charge stems from a residential burglary, and the plea agreement also satisfied pending charges against defendant related to four other residential burglaries. Under the terms of the agreement, Supreme Court retained the discretion to sentence defendant to a prison term of between six and eight years, with five years of postrelease supervision, and advised defendant that it was making no promises regarding youthful offender treatment. At sentencing, defendant's request for youthful offender status was denied and, upon consent of the parties, the court imposed a prison sentence of five years to be followed by five years of postrelease supervision. Defendant appeals.

We affirm. Contrary to defendant's contention, his waiver of the right to appeal was valid. Supreme Court distinguished the right to appeal from the rights automatically forfeited by the plea, and defendant acknowledged that he understood and was voluntarily waiving this right (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). After reviewing it with counsel, defendant also signed a written waiver in open court that explained the waiver and indicated that counsel had explained it to him (see People v. Bradshaw, 18 N.Y.3d 257, 266–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ).

Defendant's further challenge to the voluntariness of his guilty plea survives his waiver of appeal, but was not preserved for our review by an appropriate postallocution motion (see People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014] ; People v. Dozier, 115 A.D.3d 1001, 1001, 981 N.Y.S.2d 626 [2014], lvs. denied 24 N.Y.3d 1082, 1083, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). Moreover, the narrow exception to the preservation requirement is inapplicable, as the record reflects that the court made adequate further inquiry when defendant hesitated to admit his guilt (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). He then admitted that he was guilty and that he had knowingly aided his accomplices in the burglary by acting as a lookout, and he made no statements during that plea allocution that were inconsistent with his guilt or that otherwise called into question the voluntariness of his plea (see People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Guyette, 121 A.D.3d at 1431, 995 N.Y.S.2d 395 ).

Defendant's claim that his guilty plea was involuntary due to the ineffective assistance of counsel primarily concerns matters that are outside the record on appeal and are more properly pursued in a motion pursuant to CPL article 440 (see People v. Pickett, 128 A.D.3d 1275, 1276, 9 N.Y.S.3d 737 [2015], lvs. denied 26 N.Y.3d 930, 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ). To the extent that these claims impact upon the voluntariness of his plea, they survive his appeal waiver but were not preserved by an appropriate postallocution motion (see People v. Smalls, 128 A.D.3d 1281, 1282, 8 N.Y.S.3d 614 [2015] ; People v. Broomfield, 128 A.D.3d 1271, 1272, 9 N.Y.S.3d 733 [2015], lv. denied 26 N.Y.3d 1086, ––– N.Y.S.3d ––––, –––N.E.3d –––– [2015] ). In any event, defendant received a favorable plea bargain and there is nothing in the record to support his claim of ineffective assistance (see People v. Bean, 102 A.D.3d 1062, 1063, 958 N.Y.S.2d 241 [2013] ).

Defendant's challenge to the sentence as harsh and excessive is precluded by his valid appeal waiver (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Tyler, 130 A.D.3d 1383, 1385, 14 N.Y.S.3d 570 [2015] ). Inasmuch as Supreme Court fully...