People v. Crossley

191 A.D.3d 1046

137 N.Y.S.3d 746 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Michael CROSSLEY Jr., Appellant.

110833

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

Calendar Date: January 5, 2021

Decided and Entered: February 4, 2021

Linda B. Johnson, Albany, for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeals (1) from a judgment of the County Court of Rensselaer County (Young, J.), rendered October 3, 2018, convicting defendant upon his plea of guilty of the crime of assault in the second degree, and (2) from a judgment of said court, rendered January 2, 2019, which resentenced defendant.

Defendant was charged in a four-count indictment with attempted murder in the second degree, assault in the first degree, assault in the second degree and criminal possession of a weapon in the fourth degree. The charges stemmed from an incident that occurred in May 2018 when defendant attacked another individual with a box cutter. County Court subsequently dismissed the count of the indictment charging assault in the first degree, and defendant thereafter agreed to plead guilty to assault in the second degree – in full satisfaction of the remaining counts of the indictment – with the understanding that he would be sentenced to five years in prison followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Following defendant's plea, County Court imposed the contemplated period of imprisonment, and defendant appealed from the judgment of conviction. Upon discovering that the period of postrelease supervision imposed was illegal, County Court resentenced defendant to five years in prison followed by three years of postrelease supervision, and defendant then appealed from the judgment resentencing him.

We affirm. Contrary to defendant's assertion, we find that his waiver of the right to appeal was knowing, intelligent and voluntary. County Court explained that the waiver was separate and distinct from the trial-related rights that defendant was forfeiting by pleading guilty, and defendant, who was aware that such waiver was a term and condition of the plea agreement, confirmed his understanding thereof (see People v. Weidenheimer, 181 A.D.3d 1096, 1096, 122 N.Y.S.3d 149 [2020] ; People v. Provost, 181 A.D.3d 1059, 1059, 117 N.Y.S.3d 897 [2020] ). Additionally, defendant executed a written waiver in open court and assured the court that he had reviewed that document with counsel and understood its contents (see People v. Williams, 185 A.D.3d 1359, 1360, 126 N.Y.S.3d 434 [2020] ; People v. Jones, 182 A.D.3d 698, 699, 123 N.Y.S.3d 207 [2020] ). To the extent that "defendant challenges the language of the written waiver as overbroad, County Court advised defendant during the colloquy that not all appellate rights can be waived, and we are satisfied that ‘defendant understood the distinction that certain appellate rights survived’ " ( People v. Brunson, 185 A.D.3d 1300, 1300 n., 128 N.Y.S.3d 338 [2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 345, 159 N.E.3d 1112 [2020], quoting People v. Thomas, 34 N.Y.3d 545, 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; see People v. Martin, 179 A.D.3d 1385, 1386, 114 N.Y.S.3d 889 [2020] ; compare People v. Anderson, 184 A.D.3d 1020, 1020–1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 152 N.E.3d 1165 [2020] ). In light of the valid appeal waiver, defendant's argument regarding the perceived severity of his sentence is precluded (see People v. Gumbs, 182 A.D.3d 701, 702, 122 N.Y.S.3d 746 [2020], lv denied 35 N.Y.3d 1066, 129 N.Y.S.3d 398, 152 N.E.3d 1200 [2020] ; People v. Sabin, 179 A.D.3d 1401, 1402, 118 N.Y.S.3d 769 [2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 628, 149 N.E.3d 389 [2020] ).

Although defendant's challenge to the voluntariness of his plea survives even a valid appeal waiver, his argument is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Apelles, 185 A.D.3d 1298, 1299, 127 N.Y.S.3d 652 [2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 287, 155 N.E.3d 780 [2020] ; People v. Gumbs, 182 A.D.3d at 702, 122 N.Y.S.3d 746 ). Defendant's ineffective assistance of counsel claim – to the extent that it impacts upon the voluntariness of his plea – is similarly unpreserved (see People v. Harrington, 185 A.D.3d 1301, 1302, 125 N.Y.S.3d 901 [2020] ; People v. Drake, 179 A.D.3d 1221, 1222, 117 N.Y.S.3d 353 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020] ). Moreover, the narrow exception to the preservation requirement was not...