People v. Nolan

202 N.Y.S.3d 832 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Everett M. NOLAN, Appellant.

113122

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

Calendar Date: January 17, 2024

Decided and Entered: February 8, 2024

Jane M. Bloom, Monticello, for appellant.

Brian P. Conaty, District Attorney, Monticello (Danielle K. Blackaby of counsel), for respondent.

Before: Aarons, J.P., Pritzker, Lynch, Fisher and Mackey, JJ.

MEMORANDUM AND ORDER

Fisher, J.

Appeal from a judgment of the County Court of Sullivan County (Bryan E. Rounds, J.), rendered February 14, 2020, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the second degree and burglary in the third degree.

In 2019, defendant was charged by indictment with two counts of burglary in the third degree, four counts of criminal possession of a weapon in the second degree, one count of grand larceny in the third degree, two counts of criminal possession of stolen property in the fourth degree, one count of criminal possession of stolen property in the third degree, two counts of criminal possession of a weapon in the third degree, one count of criminal possession of a controlled substance in the seventh degree and one count of unlawful possession of marihuana. In full satisfaction of the indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree and burglary in the third degree. As part of the plea agreement, defendant also agreed to waive his trial and appellate rights, which he did both orally and in writing. Consistent with the terms of the plea agreement, County Court sentenced defendant to a prison term of 8½ years, to be followed by five years of postrelease supervision, for his conviction of criminal possession of a weapon in the second degree and to a lesser concurrent prison term for his conviction of burglary in the third degree. Defendant appeals.

Defendant's challenge to the factual sufficiency of the plea allocution is unpreserved and also precluded by the unchallenged waiver of appeal (see People v. Dickerson, 198 A.D.3d 1190, 1193, 156 N.Y.S.3d 526 [3d Dept. 2021] ; People v. King, 185 A.D.3d 1090, 1091, 126 N.Y.S.3d 804 [3d Dept. 2020] ; People v. Letohic, 166 A.D.3d 1223, 1223, 85 N.Y.S.3d 799 [3d Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 585, 121 N.E.3d 212 [2019] ; People v. Loomis, 17 A.D.3d 1019, 1019, 794 N.Y.S.2d 220 [3d Dept. 2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ). Similarly, although defendant's challenge to the voluntariness of his guilty plea survives his unchallenged appeal waiver (see People v. Bond, 146 A.D.3d 1155, 1156, 44 N.Y.S.3d 776 [3d Dept. 2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ; People v. Giammichele, 144 A.D.3d 1320, 1320, 40 N.Y.S.3d 794 [3d Dept. 2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ), this claim is unpreserved for our review absent evidence in the record of an appropriate postallocution motion (see People v. Pastor, 28 N.Y.3d 1089, 1090, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; People v. Small, 166 A.D.3d 1237, 1238, 86 N.Y.S.3d 677 [3d Dept. 2018] ).¹ Moreover, defendant did not make any statements that triggered the narrow exception to the preservation requirement (see People v. Pastor, 28 N.Y.3d at 1091–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 ; People v. Thomas, 153 A.D.3d 1445, 1446, 61 N.Y.S.3d 701 [3d Dept. 2017], lv denied 30 N.Y.3d 1064, 71 N.Y.S.3d 14, 94 N.E.3d 496 [2017] ; People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [3d Dept. 2016] ). Furthermore, "County Court had no duty to conduct an inquiry concerning the potential defense of intoxication based upon comments made by defendant during the Probation Department's presentence investigation" ( People v. Phillips, 30 A.D.3d 911, 911, 819 N.Y.S.2d 129 [3d Dept. 2006], lv denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006] ; see People v. Hardie, 211 A.D.3d 1418, 1420, 180 N.Y.S.3d 691 [3d Dept. 2022], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023] ; People v. McQuilla, 210 A.D.3d 1191, 1192, 178 N.Y.S.3d 264 [3d Dept. 2022] ; People v. Fauntleroy, 206 A.D.3d 1347, 1348, 168 N.Y.S.3d 916 [3d Dept. 2022] ).

"Defendant's claim of ineffective assistance of counsel – insofar as it implicates the voluntariness of his plea – survives his appeal waiver but is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion" ( People v. Letohic, 166 A.D.3d at 1223–1224, 85 N.Y.S.3d 799 [citations omitted]). "To the extent that defendant's ineffective assistance of counsel claims involve matters outside of the record, they are more properly addressed in the context of a CPL article 440 motion" ( People v. Faublas, 216 A.D.3d 1358, 1359, 189 N.Y.S.3d 828 [3d Dept. 2023] [citations omitted], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 756, 215 N.E.3d 1197 [2023] ; see e.g. People v. Devane, 212 A.D.3d 894, 896, 180 N.Y.S.3d 732 [3d Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 840, 208 N.E.3d 68 [2023] ).

Defendant's assertion that the agreed-upon sentence imposed was unduly harsh or severe is precluded by his unchallenged appeal waiver (see People v. Torres, 218 A.D.3d 1046, 1046, 194 N.Y.S.3d 795 [3d Dept. 2023], lv denied 40 N.Y.3d 1082 [2023] ; People v. Sanders, 203 A.D.3d 1403, 1403–1404, 161 N.Y.S.3d 856 [3d Dept. 2022] ; People v. Hines, 200 A.D.3d 1217, 1218, 157 N.Y.S.3d 608 [3d Dept. 2021], lv denied 38 N.Y.3d 928, 164 N.Y.S.3d 29, 184 N.E.3d 850 [2022] ). Defendant's remaining arguments, to the extent...