People v. Thompson-Goggins

182 A.D.3d 916

120 N.Y.S.3d 877 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Mazai THOMPSON–GOGGINS, Appellant.

109548

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

Calendar Date: March 26, 2020

Decided and Entered: April 30, 2020

Elena DeFio Kean, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

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

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered April 21, 2017, convicting defendant upon his plea of guilty of the crimes of attempted criminal possession of stolen property in the third degree and attempted grand larceny in the third degree.

After it was determined that defendant was fit to proceed within the meaning of CPL 730.10, and in full satisfaction of a four-count indictment and other pending charges in Albany County, defendant agreed to plead guilty to the reduced charges of attempted criminal possession of stolen property in the third degree and attempted grand larceny in the third degree. As part of the plea agreement, defendant also was required to waive his right to appeal. In conjunction therewith, County Court apprised defendant of the potential sentencing options – concurrent prison terms of 1 to 4 years if defendant was adjudicated as a youthful offender or, failing such adjudication, consecutive prison terms of 1½ to 3 years. Defendant pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing. After discovering that defendant had a prior felony conviction and, hence, was not eligible for youthful offender treatment (see CPL 720.10[2][b] ), County Court offered defendant the opportunity to withdraw his plea, which he declined. County Court thereafter sentenced defendant, as a second felony offender, to consecutive prison terms of 1½ to 3 years. This appeal ensued.¹

Defendant's challenge to the validity of the waiver of the right to appeal is unpersuasive. During the plea colloquy, County Court informed defendant that, although he automatically forfeited various trial-related rights by pleading guilty, he ordinarily still would retain the right to appeal his case to a higher court. County Court went on to explain, however, that the waiver of the right to appeal was a condition of defendant's plea agreement, and defendant indicated that he understood. After conferring with counsel, defendant executed a written waiver of appeal in open court and advised County Court that he understood that document and agreed to be bound by it. Under these circumstances, we find that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Morton, 173 A.D.3d 1464, 1465, 103 N.Y.S.3d 673 [2019], lv denied 34 N.Y.3d 935, 109 N.Y.S.3d 711, 133 N.E.3d 413 [2019] ; People v. King, 172 A.D.3d 1763, 1763–1764, 100 N.Y.S.3d 801 [2019] ; People v. Johnson, 170 A.D.3d 1274, 1275, 95 N.Y.S.3d 467 [2019] ). In light of the valid appeal waiver, defendant's challenge to the factual sufficiency of his plea is precluded (see People v. Hunt, 176 A.D.3d 1253, 1254, 111 N.Y.S.3d 134 [2019] ; People v. O'Neill, 172 A.D.3d 1778, 1779, 100 N.Y.S.3d 797 [2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 655, 134 N.E.3d 654 [2019] ).

Although defendant's challenge to the voluntariness of his plea survives his valid appeal waiver, this argument is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Lawton, 179 A.D.3d 1383, 1384, 117 N.Y.S.3d 773 [2020] ; People v. Horton, 173 A.D.3d 1342, 1343, 102 N.Y.S.3d 761 [2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 701, 133 N.E.3d 401 [2019] ). Further, defendant did not make any statements during the plea colloquy that were inconsistent with his guilt, negated an element of the charged crimes or otherwise called into question the voluntariness of his plea and, therefore, the narrow exception to the preservation requirement was not triggered (see People v. Lobao, 178 A.D.3d 1238, 1239, ...