People v. Devane

212 A.D.3d 894

180 N.Y.S.3d 732

The PEOPLE of the State of New York, Respondent,

v.Donnie DEVANE Jr., Also Known as Junior, Appellant.

112468

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

Calendar Date: November 22, 2022

Decided and Entered: January 5, 2023

Erin C. Morigerato, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Lynch, J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered April 25, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In 2017, defendant was arrested for possessing drug paraphernalia and more than half of an ounce of cocaine with the intent to sell and was subsequently charged in a six-count indictment with four counts of criminal possession of a controlled substance in the third degree, one count of tampering with physical evidence and one count of criminally using drug paraphernalia in the second degree. In full satisfaction of the indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree pursuant to a plea agreement that included an oral and signed written waiver of appeal. Consistent with the terms of that agreement, County Court sentenced defendant, as a second felony offender, to a determinate prison term of five years to be followed by three years of postrelease supervision. Defendant appeals.

"Initially, we find defendant's appeal waiver to be invalid, as the written waiver is overbroad and inaccurate, and ‘County Court did not overcome the overbroad language of the written waiver by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver’ " ( People v. Williams, 203 A.D.3d 1398, 1398–1399, 164 N.Y.S.3d 342 [3d Dept. 2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 230, 189 N.E.3d 337 [2022], quoting People v. Lunan, 196 A.D.3d 969, 970, 148 N.Y.S.3d 408 [3d Dept. 2021] ; see People v. Winters, 196 A.D.3d 847, 848–849, 151 N.Y.S.3d 263 [3d Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 413, 175 N.E.3d 438 [2021] ; People v. Avera, 192 A.D.3d 1382, 1382, 145 N.Y.S.3d 199 [3d Dept. 2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 501, 170 N.E.3d 375 [2021] ). Given the invalidity of the appeal waiver, we turn to the balance of defendant's claims.

Defendant contends that his guilty plea was not knowing, voluntary and intelligent. This claim, however, is unpreserved for our review as the record does not reveal that defendant made an appropriate postallocution motion to withdraw his guilty plea despite having an opportunity to do so prior to sentencing (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Mercer, 169 A.D.3d 1112, 1113–1114, 93 N.Y.S.3d 462 [3d Dept. 2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 221, 124 N.E.3d 710 [2019] ; People v. Jackson, 159 A.D.3d 1276, 1276, 73 N.Y.S.3d 676 [3d Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ). Defendant's contention that he received the ineffective assistance of counsel, to the extent that it impacts upon the voluntariness of his plea, is similarly unpreserved (see People v. Nack, 200 A.D.3d 1197, 1198, 157 N.Y.S.3d 590 [3d Dept. 2021], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 365, 188 N.E.3d 557 [2022] ; People v. Johnson, 194 A.D.3d 1267, 1269, 147 N.Y.S.3d 258 [3d Dept. 2021] ). "[T]he balance of defendant's ineffective assistance of counsel claim, including that counsel failed to investigate the facts of his case, research the applicable law or advise him of potential defenses, involve matters outside the record that are more properly the subject of a CPL article 440 motion" ( People v. McCoy, 198 A.D.3d 1021, 1023, 152 N.Y.S.3d 635 [3d Dept. 2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 724, 181 N.E.3d 1152 [2022] ; see People v. Chrise, 197 A.D.3d 1357, 1359, 150 N.Y.S.3d 629 [3d Dept. 2021], lv denied 37 N.Y.3d 1059, 154 N.Y.S.3d 630, 176 N.E.3d 666 [2021] ; People v. White, 172 A.D.3d 1822, 1824, 101 N.Y.S.3d 519 [3d Dept. 2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ).

Lastly, after reviewing the record, including the information contained in the presentence investigation report, we reject defendant's challenge to his sentence as unduly harsh or severe (see People v. Stallworth, 83 A.D.3d 1293, 1294, 920 N.Y.S.2d 753 [3d Dept. 2011] ). However, given that defendant admitted to a predicate felony and was then convicted on his guilty plea of a drug-related felony under Penal Law article 220, County Court was required to designate him as a second felony drug offender, not a second felony offender (see Penal Law § 70.70[1][b] ; People v. Chrise, 197 A.D.3d at 1359, 150 N.Y.S.3d 629 ). Notably, defendant's sentence – a determinate prison term of five years followed by three years of postrelease...