People v. Mahon

• Decision Date: 09 March 2017
• Citation: 48 N.Y.S.3d 842,148 A.D.3d 1303
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert E. MAHON Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1303
48 N.Y.S.3d 842

The PEOPLE of the State of New York, Respondent,
v.
Robert E. MAHON Jr., Appellant.

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

March 9, 2017.

48 N.Y.S.3d 842

Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, LYNCH, ROSE and AARONS, JJ.

AARONS, J.

148 A.D.3d 1303

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered April 2, 2015, convicting defendant

48 N.Y.S.3d 843

upon his plea of guilty of the crime of burglary in the third degree.

Defendant entered an Alford plea to burglary in the third degree in satisfaction of a superior court information, waived his right to appeal and was placed on interim probation for one year. According to the plea agreement, if defendant was successful on interim probation, he would be sentenced to five years of probation and ordered to pay restitution. Defendant subsequently admitted to violating the interim probation. County Court sentenced defendant to a prison term of 2 to 6 years and ordered restitution in the amount of $360. Defendant appeals.

As an initial matter, we find that defendant's waiver of appeal was valid. The record reflects that County Court informed defendant of the separate and distinct nature of the waiver of the right to appeal. Defendant executed a written waiver of appeal, which explained that he had the right to "appeal to a higher court" and that he was relinquishing that right. In view of the foregoing, we conclude that defendant's combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ; People v. Toledo, 144 A.D.3d 1332, 1332, 40 N.Y.S.3d 680 [2016] ; People v. Oddy, 144 A.D.3d 1322, 1323, 41 N.Y.S.3d 316 [2016] ; People v. Lester, 141 A.D.3d 951, 952–953, 36 N.Y.S.3d 288 [2016] ).

To that end, defendant's valid waiver of appeal precludes his claim of ineffective assistance of counsel, except insofar as the alleged ineffective assistance impacts the voluntariness of the plea (see People v. Lloyd, 142 A.D.3d 1250, 1250, 37 N.Y.S.3d 917 [2016], lv. denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ; People v. Viele, 130 A.D.3d 1097, 1097, 10 N.Y.S.3d 912 [2015] ). Such claims as to the voluntariness of the plea,

148 A.D.3d 1304

however, are unpreserved in the absence of a postallocution motion¹ and the narrow exception to the preservation requirement is inapplicable (see People v. Ortiz, 127 A.D.3d 1416, 1417, 7 N.Y.S.3d 645 [2015], lv. denied 26 N.Y.3d 1010, 20 N.Y.S.3d 551, 42 N.E.3d 221 [2015] ). Defendant's challenges to the sufficiency of the plea and the severity of his sentence are also foreclosed by his valid appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2009] ; People v. Woods, ...