People v. Richardson

• Decision Date: 21 April 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Melvin RICHARDSON, Appellant.
• Court: New York Supreme Court

83 A.D.3d 1290

920 N.Y.S.2d 752

The PEOPLE of the State of New York, Respondent,

v.Melvin RICHARDSON, Appellant.

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

April 21, 2011.

Michael G. Paul, Albany, for appellant.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: MERCURE, J.P., ROSE, MALONE JR., STEIN AND EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered November 30, 2009, convicting defendant upon his plea of guilty of the crime of attempted robbery in the second degree.

In satisfaction of a two-count indictment, defendant waived his right to appeal, pleaded guilty to one count of attempted robbery in the second degree and was sentenced to a prison term of 4 1/2 years followed by three years of postrelease supervision.¹ Defendant now appeals contending, among other things, that his plea was involuntary.

We affirm. To the extent that defendant challenges the factual sufficiency of his plea allocution, this claim is foreclosed by his valid waiver of the right to appeal and, further, is unpreserved for our review in light of defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Empey, 73 A.D.3d 1387, 1388, 901 N.Y.S.2d 756 [2010],lv. denied15 N.Y.3d 804, 908 N.Y.S.2d 164, 934 N.E.2d 898 [2010];People v. Thomas, 71 A.D.3d 1231, 1232, 896 N.Y.S.2d 264 [2010],lv. denied14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010];People v. Sinclair, 48 A.D.3d 974, 852 N.Y.S.2d 448 [2008] ).

Although defendant's assertion that his plea was involuntary survives his waiver of the right to appeal, this argument also is unpreserved due to defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Phelan, 77 A.D.3d 987, 909 N.Y.S.2d 159 [2010];People v. Singh, 73 A.D.3d 1384, 1384–1385, 901 N.Y.S.2d 428 [2010],lv. denied15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 [2010];People v. Scitz, 67 A.D.3d 1251, 889 N.Y.S.2d 306 [2009] ). Further, the narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during his plea allocution that tended to negate a material element of the crime or otherwise cast doubt upon his guilt ( see People v. Cintron, 62 A.D.3d 1157, 1158, 881 N.Y.S.2d 183 [2009],lv. denied13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009];People v. Jeske, 55 A.D.3d 1057, 1058, 865 N.Y.S.2d 750 [2008],lv. denied11 N.Y.3d 898, 873 N.Y.S.2d 274, 901 N.E.2d 768 [2008] ). Were we to reach this issue, we would find defendant's claim of coercion to be lacking in merit ( see People v. Singh, 73 A.D.3d at 1385, 901 N.Y.S.2d 428;People v. Squitieri, 60 A.D.3d 1208, 1209, 875 N.Y.S.2d 619 [2009],lv. denied13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 [2009] ).

To the extent that defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea, it survives the waiver of appeal but similarly is unpreserved for our review ( see People v. Rivera, 78 A.D.3d 1423, 1424, 912 N.Y.S.2d 450 [2010];People v. MacDonald, 77 A.D.3d 989, 990, 908 N.Y.S.2d 464 [2010],lv. denied15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010];People v. Garland, 69 A.D.3d 1122, 1123, 891 N.Y.S.2d 921 [2010],lv. denied14 N.Y.3d 887, 903 N.Y.S.2d 776, 929 N.E.2d 1011 [2010] ). The balance of defendant's argument on this point—that counsel gave him bad advice and made certain representations regarding the sentence he would receive—“involves facts outside the record and, as such, it is more properly the subject of a CPL article 440 motion” ( People v. Rivera, 78 A.D.3d at 1424, 912 N.Y.S.2d 450;see People v. Terpening, 79 A.D.3d 1367, 912 N.Y.S.2d 776 [2010] ).

Finally, defendant's valid waiver of the right to appeal precludes review of his claim that the sentence imposed was harsh and excessive ( see People v. Peterkin, 77 A.D.3d 1017, 1018, 908 N.Y.S.2d 614 [2010];People v. Scitz, 67 A.D.3d at 1252, 889 N.Y.S.2d 306). Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that judgment is affirmed.

MERCURE, J.P., ROSE, MALONE JR. and STEIN, JJ., concur.

1. The plea originally included five years of postrelease supervision, but this term was...