People v. McRae

• Decision Date: 04 May 2017
• Citation: 150 A.D.3d 1328,51 N.Y.S.3d 434 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Willie McRAE, Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1328

51 N.Y.S.3d 434 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Willie McRAE, Appellant.

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

May 4, 2017.

Dennis J. Lamb, Troy, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: PETERS, P.J., GARRY, DEVINE, MULVEY and AARONS, JJ.

AARONS, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 9, 2013, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Pursuant to a negotiated plea agreement, and in full satisfaction of a two-count indictment and other then-pending charges, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree and executed a written waiver of appeal in open court. Consistent with the terms of the plea agreement, County Court imposed upon defendant, as a nonviolent predicate felony offender, a prison sentence of seven years to be followed by three years of postrelease supervision. Defendant now appeals.

We affirm. Initially, we find that defendant's oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–341, 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] ). The record reflects that County Court distinguished the right to appeal as "separate and apart" from the rights automatically forfeited by a guilty plea, and defendant acknowledged that he signed and understood the written appeal waiver after reviewing it and conferring with counsel regarding its contents (see People v. Hall, 147 A.D.3d 1151, 1151, 47 N.Y.S.3d 147 [2017] ; People v. Dolberry, 147 A.D.3d 1149, 1150, 46 N.Y.S.3d 437 [2017] ). While defendant's challenge to the voluntariness of his plea survives the appeal waiver, this claim was not preserved by an appropriate postallocution motion (see People v. Smith, 121 A.D.3d 1131, 1132, 993 N.Y.S.2d 392 [2014], lv. denied 24 N.Y.3d 1123, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015] ; People v. Waite, 120 A.D.3d 1446, 1447, 994 N.Y.S.2d 201 [2014] ), and defendant made no statements during the plea colloquy that triggered the narrow exception to the preservation requirement (see People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Austin, 141 A.D.3d 956, 957, 35 N.Y.S.3d 580 [2016] ).

Defendant's claim that the sentence was harsh and excessive is foreclosed by the valid appeal waiver (see People v. Macon, 142 A.D.3d 739, 739, 36 N.Y.S.3d 752 [2016], lvs. denied 28 N.Y.3d 1073, 1075, 47 N.Y.S.3d 232, 234, 69 N.E.3d 1028, 1030 [2016] ; People v. Rushlow, 137 A.D.3d 1482, 1483, 28 N.Y.S.3d 476 [2016] ), which includes his "right to invoke [this Court's] interest-of-justice jurisdiction to reduce the sentence" (People v. Bethea, 133 A.D.3d 1033, 1033, 19 N.Y.S.3d 191 [2015] [internal quotation marks and citations omitted], lv. denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ). To the extent that defendant raises a claim regarding what counsel investigated or discussed with him, this concerns a matter that is outside the record on appeal and is more properly suited for a CPL article 440 motion (see People v. Daniels, 139 A.D.3d 1256, 1257, 32 N.Y.S.3d 676 [2016], lv. denied ...