People v. McQuilla

210 A.D.3d 1191

178 N.Y.S.3d 264

The PEOPLE of the State of New York, Respondent,

v.Raymond K. MCQUILLA, Appellant.

110213

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

Calendar Date: October 19, 2022

Decided and Entered: November 10, 2022

Robert C. Kilmer, Binghamton, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Benjamin E. Holwitt 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 Broome County (Joseph F. Cawley Jr., J.), rendered December 15, 2017, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.

In September 2017, defendant was charged, by superior court information, with burglary in the third degree (see Penal Law § 140.20 ). Following waiver of indictment, defendant waived the right to appeal and pleaded guilty to this singular count with the understanding that he would be placed on interim probation and, upon successful completion thereof, would be sentenced to a five-year period of probation. If defendant did not successfully complete this period of interim probation, he faced a sentence of up to four years in prison. Defendant was subsequently arrested, and his interim probation was revoked because of the charges that stemmed therefrom. Defendant then consented to an indeterminate term of 1 to 3 years as to his present conviction in satisfaction of both this and the new charges, which would be dismissed. Following adjournments of sentencing for completion of the presentence investigation report, defendant was so sentenced. Defendant appeals.

Defendant's challenge to the voluntariness of the plea – premised upon his admission during the presentence investigation that he was under the influence of drugs and alcohol at the time of the commission of the crime – is unpreserved for review as defendant failed to make an appropriate postallocution motion despite having the opportunity to do so (see People v. Greene, 207 A.D.3d 804, 805, 170 N.Y.S.3d 729 [3d Dept. 2022], lv denied 38 N.Y.3d 1150, 174 N.Y.S.3d 45, 194 N.E.3d 752 [2022] ; People v. Loya, 204 A.D.3d 1255, 1256, 166 N.Y.S.3d 752 [3d Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 444, 191 N.E.3d 396 [2022] ). Despite these statements, "the narrow exception to the preservation rule is inapplicable because defendant failed to avail himself of the ‘opportunity to seek relief from the sentencing court by moving to withdraw his plea based on his alleged intoxication defense’ " ( People v. Fauntleroy, 206 A.D.3d 1347, 1347–1348, 168 N.Y.S.3d 916 [3d Dept. 2022] [brackets omitted], quoting People v. Pastor, 28 N.Y.3d 1089, 1090, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; see People v. Stafford, 195 A.D.3d 1466, 1467, 145 N.Y.S.3d 506 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 409, 175 N.E.3d 434 [2021] ). Nor did these statements obligate County Court to sua sponte conduct an inquiry into the possibility of such a defense (see People v. Fauntleroy, 206 A.D.3d at 1348, 168 N.Y.S.3d 916 ; People v. Lorenzo–Perez, 203 A.D.3d 847, 848, 160 N.Y.S.3d 895 [2d Dept. 2022], lv denied 38 N.Y.3d 1034, 169 N.Y.S.3d 220, 189 N.E.3d 327 [2022] ; People v. Bailey, 158 A.D.3d 948, 949, 71 N.Y.S.3d 667 [3d Dept. 2018] ). Moreover, defendant's ineffective assistance of counsel claim, based upon trial counsel's failure to raise an issue with these statements at sentencing, does not implicate the voluntariness of his plea and is, therefore, foreclosed by his unchallenged waiver of the right to appeal (see People v. Murray, 197 A.D.3d 1355, 1356, 150 N.Y.S.3d 901 [3d Dept. 2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 2, 184 N.E.3d 823 [2022] ; People v. Golden, 171 A.D.3d 1357, 1357, 98 N.Y.S.3d 662 [3d Dept. 2019] ). To the extent defendant's allegations...