People v. Wimberly

214 N.Y.S.3d 235

228 A.D.3d 1177

The PEOPLE of the State of New York, Respondent,

v.Savion WIMBERLY, Appellant.

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

Calendar Date: June 3, 2024

Decided and Entered: June 27, 2024

Aaron A. Louridas, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.

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

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the County Court of Albany County (Peter A. Lynch, J.), rendered April 25, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

Defendant, then 16 years old, waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with criminal possession of a weapon in the second degree. The People afforded defendant the opportunity to plead guilty to the charged crime with the understanding that he would be sentenced to a prison term of five years followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the agreement and, after determining that defendant was not an eligible youth for purposes of youthful offender treatment, County Court imposed the agreed-upon sentence. This appeal ensued.

[1, 2] We affirm. Defendant’s challenge to the voluntariness of his plea, which survives even a valid appeal waiver, is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Merritt, 210 A.D.3d 1209, 1209, 178 N.Y.S.3d 254 [3d Dept. 2022]; People v. Crossley, 191 A.D.3d 1046, 1047, 137 N.Y.S.3d 746 [3d Dept. 2021], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 414, 174 N.E.3d 354 [2021]), and the narrow exception to the preservation requirement was not triggered here. In any event, defendant’s claim of coercion is belied by the record, wherein defendant assured County Court that he was pleading guilty of his own free will (see People v. Hawkins, 207 A.D.3d 814, 816, 170 N.Y.S.3d 732 [3d Dept. 2022]). We decline defendant’s request to take corrective action in the interest of justice, "as the record reflects that he made a knowing, voluntary and intelligent choice to plead guilty" (People v. Nunnally, 224 A.D.3d 992, 993, 205 N.Y.S.3d 250 [3d Dept. 2024], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 229, 236 N.E.3d 1248 [May 7, 2024]).

[3] Defendant’s related ineffective assistance of counsel claim - to the extent that it impacts upon the voluntariness of his plea - is similarly unpreserved (see People v. Tucker, 222 A.D.3d 1038, 1042, 200 N.Y.S.3d 798 [3d Dept. 2023]; People v. Loya, 215 A.D.3d 1181, 1183, 187 N.Y.S.3d 444 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 502, 213 N.E.3d 644 [2023]). To the extent that defendant’s ineffective assistance of counsel claim is premised upon counsel’s alleged failure to explain certain aspects of the proceedings to or adequately communicate with defendant, such claims implicate matters outside of the record that are more properly addressed in the context of a CPL article 440 motion (see People v. Taylor, 207 A.D.3d 806, 810, 171 N.Y.S.3d 634 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 520, 198 N.E.3d 763 [2022]; People v. Elawar, 204 A.D.3d 1247, 1249, 165 N.Y.S.3d 385 [3d Dept. 2022], lv denied, 38 N.Y.3d 1133, 172 N.Y.S.3d 842, 193 N.E.3d 507 [2022]).

[4] As to the sentence imposed, the People concede - and the record confirms - that the waiver of the right to appeal is invalid. Hence, defendant’s claims that County Court abused its discretion in failing to grant him youthful offender status and that the negotiated sentence imposed was unduly harsh or severe (see CPL 470.15[6][b]) are not precluded (see People v. McGill, 207 A.D.3d 996, 997, 172 N.Y.S.3d 525 [3d Dept. 2022], lv denied 39 N.Y.3d 987, 181 N.Y.S.3d 192, 201 N.E.3d 809 [2022]; People v. Williams, 202 A.D.3d 1162, 1163, 162 N.Y.S.3d 204 [3d Dept. 2022], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 448, 185 N.E.3d 969 [2022]). That said, we discern no basis upon which to disturb the sentence imposed.

[5, 6] "[W]here, as here, a youth has been convicted of an armed felony offense, he or she is eligible to be found a youthful offender if the sentencing court determines that one or more of the factors set forth in CPL 720.10(3) are present - namely, whether there are mitigating circumstances that bear directly upon the manner in which the crime was committed or, if the defendant was not the sole participant in the crime, whether the defendant’s participation was relatively minor, although not so minor as to constitute a defense. If the court determines, in its discretion, that neither of the [statutory] factors exists and states the reasons for that determination on the record, no further determination by the court is required" (People v. Williams, 202 A.D.3d at 1163, 162 N.Y.S.3d 204 [internal quotation marks, brackets and citations omitted]; accord People v. Colon, 208 A.D.3d 1551, 1553, 175 N.Y.S.3d 154 [3d Dept. 2022], lv denied. 39 N.Y.3d 1071, 183 N.Y.S.3d 784, 204 N.E.3d 420 [2023]; see People v. Middlebrooks, 25 N.Y.3d 516, 526-527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015]).

[7, 8] Here, defendant concedes that he was not the only participant in the crime and, further, that his participation therein was not relatively minor, leaving us to consider whether sufficient mitigating circumstances exist. In this regard, "the case law makes clear that...