People v. DeJesus

210 A.D.3d 1195

176 N.Y.S.3d 887

The PEOPLE of the State of New York, Respondent,

v.Luis DEJESUS, Appellant.

110954

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

Calendar Date: October 19, 2022

Decided and Entered: November 10, 2022

Barrett D. Mack, Albany, for appellant.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the County Court of Albany County (Peter A. Lynch, J.), rendered April 15, 2018, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.

In August 2017 defendant and a codefendant were charged in a five-count superseding indictment with two counts of robbery in the first degree, robbery in the second degree and two counts of burglary in the first degree based upon allegations that they, with another, forcibly broke into the victims’ home and stole certain property. In satisfaction of the foregoing, as well as unindicted charges stemming from a subsequent arrest, defendant pleaded guilty to count 2, robbery in the first degree, and waived his right to appeal. County Court sentenced defendant, in accord with the terms of the plea agreement, to a prison term of 12 years to be followed by five years of postrelease supervision. Defendant appeals. We affirm.

Despite indicating that he wished to withdraw his plea as a result of the length of the bargained for sentence, upon conferring with counsel, defendant did not do so. Thus, while defendant's attack on the voluntariness of his plea survives his unchallenged appeal waiver, it is unpreserved for our review given his failure to make an appropriate postallocution motion despite the opportunity to do so (see People v. Reese, 206 A.D.3d 1461, 1463, 170 N.Y.S.3d 375 [3d Dept. 2022] ; People v. Parkinson, 199 A.D.3d 1243, 1243, 157 N.Y.S.3d 198 [3d Dept. 2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 708, 181 N.E.3d 1136 [2022] ). The narrow exception to the preservation requirement does not apply here as "defendant did not make any statements during the plea colloquy [or at sentencing] that were inconsistent with his guilt, negated an essential element of the charged crime or otherwise called into question the voluntariness of his plea" ( People v. Silva, 205 A.D.3d 1226, 1227, 166 N.Y.S.3d 619 [3d Dept. 2022] [internal quotation marks and citation omitted], lv denied 38 N.Y.3d 1074, 171 N.Y.S.3d 450, 191 N.E.3d 402 [2022] ). Moreover, defendant's postplea claim of innocence, articulated during his presentence investigation interview, "did not obligate County Court to conduct a further inquiry" ( People v. Duckett, 205 A.D.3d 1229, 1230, 168 N.Y.S.3d 178 [3d Dept. 2022] ; see People v. Bailey, 158 A.D.3d 948, 949, 71 N.Y.S.3d 667 [3d Dept. 2018] ).

Defendant's challenge to the severity of his sentence is foreclosed by his unchallenged appeal waiver (see People v. Agueda, 202 A.D.3d 1153, 1154, 160 N.Y.S.3d 489 [3d Dept. 2022], lv denied 38 N.Y.3d 1031, 169 N.Y.S.3d 209, 189 N.E.3d 316 [2022] ). To the extent that defendant's claim that he received ineffective assistance of counsel impacts the voluntariness of his plea, such claim survives his appeal waiver but is similarly unpreserved in light of his failure to make an appropriate postallocution motion (see People v. Lende, 204 A.D.3d 1224, 1225, 165 N.Y.S.3d 382 [3d Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 51, 194 N.E.3d 758 [2022] ; People v. Deans, 202 A.D.3d 1161, 1161–1162, 158 N.Y.S.3d 652 [3d Dept. 2022] ). Defendant's pro se contention that ...