People v. Silva

205 A.D.3d 1226

166 N.Y.S.3d 619 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Steven M. SILVA, Appellant.

112172

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

Calendar Date: April 25, 2022

Decided and Entered: May 19, 2022

Barrett D. Mack, Albany, for appellant.

Michael D. Korchak, District Attorney (Rita M. Basile of counsel), for respondent.

Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered September 27, 2019, convicting defendant upon his plea of guilty of the crime of rape in the second degree.

Defendant was discovered having sexual intercourse with the 14–year–old victim and was thereafter charged with four counts of rape in the second degree and three counts of criminal sexual act in the second degree. Defendant ultimately pleaded guilty to one count of rape in the second degree and waived his right to appeal. In accordance with the plea agreement, defendant was sentenced to four years of incarceration to be followed by 10 years of postrelease supervision. Defendant appeals.

We affirm. Defendant's challenge to 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 [2022] ; People v. Hines, 200 A.D.3d 1217, 1218, 157 N.Y.S.3d 608 [2021], lvs denied 38 N.Y.3d 928, 931, 164 N.Y.S.3d 29, 184 N.E.3d 850 [2022]). Further, although defendant's challenge to the voluntariness of his plea survives his uncontested appeal waiver (see People v. Jean–Pierre, 203 A.D.3d 1226, 1228, 160 N.Y.S.3d 670 [2022] ; People v. Agueda, 202 A.D.3d at 1154, 160 N.Y.S.3d 489 ), this challenge is unpreserved because defendant did not make an appropriate postallocution motion (see People v. Pompey, 203 A.D.3d 1411, 1412, 164 N.Y.S.3d 718 [2022], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 WL 1479891 [Apr. 28, 2022] ; People v. Williams, 203 A.D.3d 1398, 1399, 164 N.Y.S.3d 342 [2022] ; People v. Jackson, 2022 N.Y. Slip Op. 01841, *1, 203 A.D.3d 1388, 161 N.Y.S.3d 855 [2022] ). The narrow exception to the preservation requirement does not apply, given that "defendant did not make any statements during the plea colloquy 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. Pompey, 203 A.D.3d at 1412, 164 N.Y.S.3d 718 ). Finally, defendant's contention that he received the ineffective assistance of counsel survives his appeal waiver to the extent that it impacts upon the voluntariness...