People v. Pendelton

• Citation: 916 N.Y.S.2d 297,81 A.D.3d 1037
• Parties: The PEOPLE of the State of New York, Respondent, v. Khalan PENDELTON, Appellant.
• Decision Date: 10 February 2011
• Court: New York Supreme Court Appellate Division

916 N.Y.S.2d 297 81 A.D.3d 1037 The PEOPLE of the State of New York, Respondent, v. Khalan PENDELTON, Appellant. Supreme Court, Appellate Division, Third Department, New York. Feb. 10, 2011.

Theresa M. Suozzi, Saratoga Springs, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before PETERS, J.P., SPAIN, ROSE, KAVANAGH and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered November 25, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

In full satisfaction of a 14-count indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree and waived his right to appeal. County Court thereafter sentenced defendant to 10 years in prison, to be followed by five years of postrelease supervision, with the sentence to run concurrently with the sentence imposed on an unrelated charge. Defendant now appeals and we affirm.

Initially, we are unpersuaded by defendant's contention that his waiver of the right to appeal was invalid. The record reflects that County Court fully informed defendant regarding the waiver, including that the right to appeal is separate and distinct from the rights forfeited by a guilty plea ( see People v. Lopez, 6 N.Y.3d 248, 256-257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Tabbott, 61 A.D.3d 1183, 1184, 876 N.Y.S.2d 760 [2009], lv. denied 13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009] ). Defendant also executed a detailed written waiver in open court, assisted by counsel, which described the ramifications of the waiver and acknowledged that defendant was knowingly and voluntarilywaiving his right to appeal after being given sufficient time to discuss its consequences with counsel ( see People v. Thomas, 71 A.D.3d 1231, 1231, 896 N.Y.S.2d 264 [2010], lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010]; People v. Gilmour, 61 A.D.3d 1122, 1123, 876 N.Y.S.2d 553 [2009], lv. denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ). Under these circumstances, we find that defendant knowingly, voluntarily and intelligently waived his right to appeal ( see People v. Diaz, 72 A.D.3d 1349, 1350, 899 N.Y.S.2d 441 [2010], lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010]; People v. Thomas, 71 A.D.3d at 1231, 896 N.Y.S.2d 264).

Defendant's contention that his plea was not voluntarily entered due to being pressured into entering a plea survives his waiver of the right to appeal, but is unpreserved for our review in light of his failure to move to withdraw his plea or vacate his judgment of conviction ( see People v. Singh, 73 A.D.3d 1384, 1384-1385, 901 N.Y.S.2d 428 [2010], lv. denied 15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 [2010]; People v. Empey, 73 A.D.3d 1387, 1388, 901 N.Y.S.2d 756 [2010], lv. denied 15 N.Y.3d 804, 908 N.Y.S.2d 164, 934 N.E.2d 898 [2010] ). Nor did defendant make any statements during the allocution that negated an essential element of the crime or otherwise cast doubt upon his guilt in order to trigger the exception to the preservation requirement ( see People v. McKenzie, 66 A.D.3d 1056, 1057, 887 N.Y.S.2d 685 [2009]; People v. Dixon, 62 A.D.3d 1214, 1214, 879 N.Y.S.2d 631 [2009], lv. denied 13 N.Y.3d 743, 886 N.Y.S.2d 97, 914 N.E.2d 1015 [2009] ).

Defendant also claims that his plea was not voluntarily entered due to the fact that he was unaware that his sentence would include a five-year period of postrelease supervision. While this claim does not have to be preserved by a postallocution motion ( see People v. Boyd, 12 N.Y.3d 390, 393, 880 N.Y.S.2d 908, 908 N.E.2d 898 [2009]; People v. Louree, 8 N.Y.3d 541, 545, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007] ), inasmuch as the record reveals that defendant was informed by County Court during the allocution that, as part of the plea agreement, he would be sentenced to a period of postrelease supervision and advised that the potential duration of the postrelease supervision would be between 2 1/2 to 5 years, his claim that his plea wasinvoluntary entered on this basis is without merit ( see People v. Cullen, 62 A.D.3d 1155, 1156-1157, 880 N.Y.S.2d 211 [2009], lv. denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009]; cf. People v. Grimm, 69 A.D.3d 1231, 1232, 895 N.Y.S.2d 220 [2010], lv. denied 14 N.Y.3d 888, 903 N.Y.S.2d 776, 929 N.E.2d 1011 [2010] ).

Similarly, defendant's assertion that he was denied the effective assistance of counsel, while not barred by his waiver of the right to appeal as it relates to the voluntariness of his plea, is unpreserved for review based upon his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Belle, 74 A.D.3d 1477, 1480, 902 N.Y.S.2d 258 [2010], lv. denied 15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010]; People v. Dobrouch, 59 A.D.3d 781, 781, 873 N.Y.S.2d 759 [2009], lv. denied 12 N.Y.3d 853, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ). In any event, defendant's claims that counsel pressured him into pleading guilty, failed to meetwith him sufficiently prior to entering the plea, failed to investigate potential defenses or inform him about the length of postrelease supervision that he was facing all involve matters outside the record and...