People v. Viele
| Decision Date | 02 July 2015 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Patrick R. VIELE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
130 A.D.3d 1097
10 N.Y.S.3d 912 (Mem)
2015 N.Y. Slip Op. 05717
The PEOPLE of the State of New York, Respondent
v.
Patrick R. VIELE, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
July 2, 2015.
Linda A. Berkowitz, Saratoga Springs, for appellant.
G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
Before: LAHTINEN, J.P., LYNCH, DEVINE and CLARK, JJ.
Opinion
LAHTINEN, J.P.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered January 10, 2014, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the fifth degree.
Defendant pleaded guilty to attempted criminal sale of a controlled substance in the fifth degree and waived his right to appeal. County Court thereafter sentenced
him to time served and five years of probation. Defendant now appeals.
We affirm. To the extent that defendant challenges the validity of his appeal waiver, the plea colloquy and the counseled written waiver demonstrate that he knowingly, intelligently and voluntarily waived his right to appeal (see People v. Long, 117 A.D.3d 1326, 1326, 986 N.Y.S.2d 670 [2014], lv. denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014] ; People v. Frasier, 105 A.D.3d 1079, 1080, 962 N.Y.S.2d 787 [2013], lv. denied 22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ). Defendant's valid appeal waiver forecloses his claim of ineffective assistance of counsel, except insofar as the alleged ineffective assistance impacted upon the voluntariness of his plea (see People v. Brooks, 118 A.D.3d 1123, 1124, 987 N.Y.S.2d 249 [2014], lv. denied 24 N.Y.3d 959, 996 N.Y.S.2d 218, 20 N.E.3d 998 [2014] ; People v. Livziey, 117 A.D.3d 1341, 1342, 986 N.Y.S.2d 686 [2014] ). Such claims regarding the voluntariness of his plea are unpreserved for our review, however, as the record does not reflect that he made an appropriate postallocution motion (see People v. Terry, 122 A.D.3d 955, 956, 994 N.Y.S.2d 723 [2014] ; People v. Osgood, 111 A.D.3d 1029, 1030, 974 N.Y.S.2d 662 [2013], lv. denied 22 N.Y.3d 1089, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014] ). Further, to the extent that defendant alleges that his plea was not voluntary due to counsel's failure to move to dismiss the indictment on statutory speedy trial grounds, the record on appeal is inadequate to assess the merits of the claim, given the lack of any motion before County Court on the issue, and, therefore, it could only be raised in a CPL article 440 motion (see People v. Slingerland, 101...
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...extent that this claim impacts the voluntariness of defendant's guilty plea, it survives his appeal waiver (see People v. Viele, 130 A.D.3d 1097, 1097, 10 N.Y.S.3d 912 [2015] ), but it is unpreserved for our review inasmuch as the record does not reflect that defendant made an appropriate p......
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