People v. Baldwin

205 A.D.3d 1216

166 N.Y.S.3d 616 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Jebb W. BALDWIN, Appellant.

111087

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

Calendar Date: April 19, 2022

Decided and Entered: May 19, 2022

Robert C. Kilmer, Binghamton, for appellant.

Kirk O. Martin, District Attorney, Owego (Torrance L. Schmitz of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Colangelo and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from a judgment of the County Court of Tioga County (Keene, J.), rendered October 29, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant was indicted and charged with one count of criminal possession of a controlled substance in the fourth degree. After initially rejecting a plea offer, defendant agreed to plead guilty to the indictment with the understanding that sentencing would be left to the discretion of County Court. County Court apprised defendant of the maximum potential term of imprisonment, and defendant thereafter pleaded guilty to the charged crime. Defendant subsequently was sentenced as a second felony offender to a prison term of four years, followed by three years of postrelease supervision. This appeal ensued.

Defendant's challenge to the voluntariness of his plea is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion – despite having ample opportunity to do so prior to sentencing (see People v. Wood, 203 A.D.3d 1406, 1406, 164 N.Y.S.3d 727 [2022] ; People v. Jackson, 203 A.D.3d 1388, 1389, 161 N.Y.S.3d 855 [2022] ; People v. Dickerson, 198 A.D.3d 1190, 1192–1193, 156 N.Y.S.3d 526 [2021] ). Contrary to defendant's assertion, the narrow exception to the preservation requirement was not triggered, as "defendant did not make any statements during the plea colloquy that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea" ( People v. Murray, 197 A.D.3d 1355, 1356, 150 N.Y.S.3d 901 [2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 2, 184 N.E.3d 823 [2022] ; see People v. Parkinson, 199 A.D.3d 1243, 1243–1244, 157 N.Y.S.3d 198 [2021], lvs denied 37 N.Y.3d 1162, 1163, 160 N.Y.S.3d 709, 708, 181 N.E.3d 1136, 1137 [2022]). To the extent that defendant contends that counsel's comments during the plea colloquy effectively deprived defendant of his right to a jury trial or otherwise amounted to coercion, we note that this assertion is belied by the sworn plea colloquy, wherein defendant acknowledged that he was forfeiting his trial-related rights by pleading guilty and assured County Court that no one had pressured him to do so. Defendant's ineffective assistance of counsel claim is similarly unpreserved (see People v. Harris, 201 A.D.3d 1030, 1031, 156 N.Y.S.3d 766 [2022], lvs denied 38 N.Y.3d 950, 952, 954, 165 N.Y.S.3d 469, 470, 482, 185 N.E.3d 990,...