People v. DuckettPeople v. Duckett
Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered February 1, 2018, convicting defendant upon his plea of guilty of the crime of murder in the second degree.
Defendant pleaded guilty to murder in the second degree in satisfaction of an indictment that also charged him with criminal possession of a weapon in the second degree. The charges stem from defendant‘s admitted conduct, captured in a video recording, in intentionally shooting Terrance Roberts on June 18, 2017, causing his death. Pursuant to the plea agreement, defendant was required to waive his right to appeal, and executed a written waiver of appeal as part of the plea allocution. County Court imposed the agreed-upon prison term of 20 years to life. Defendant appeals.
Initially, although a waiver of appeal was contemplated as a condition of the plea agreement, we agree with defendant that his appeal waiver is invalid. County Court failed to adequately inform defendant that the waiver of appeal was separate and distinct from the trial-related rights that were automatically forfeited by his guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Davis, 199 AD3d 1123, 1124 [2021], lv denied 37 NY3d 1160 [2022]; see also People v Thomas, 34 NY3d 545, 561 [2019]; cf. People v Acevedo, 179 AD3d 1397, 1398 [2020]). The written waiver of appeal executed by defendant was similarly deficient (see People v LaPierre, 189 AD3d 1813, 1815 [2020], lv denied 36 NY3d 1098 [2021]; cf. People v Nack, 200 AD3d 1197, 1198 [2021], lv denied ___ NY3d ___ [Apr. 20, 2022]). As such, defendant‘s challenge to the sentence as harsh and excessive is not precluded (see People v Davis, 199 AD3d at 1124). However, upon review, we are not persuaded that the authorized sentence, which is in the mid-range for this class A-1 felony (see
Defendant‘s challenge to the voluntariness of his plea, based upon claims of ineffectiveness of counsel, is unpreserved for our review in the absence of evidence in the record of an appropriate postallocution motion (see People v Stratton, 201 AD3d 1201, 1203-1204 [2022]). Further, the narrow exception to the preservation requirement was not implicated as the record does not disclose that defendant made any statements during the plea colloquy
Defendant‘s contentions that defense counsel was ineffective based upon what counsel advised or explained to him are based on matters outside the record on appeal and, as such, more appropriately raised in a motion to vacate pursuant to CPL article 440 (see People v Linear, 200 AD3d 1498, 1499 [2021], lvs denied 38 NY3d 951, 952 [2022]; People v Huebsch, 199 AD3d 1174, 1176 [2021], lv denied 37 NY3d 1161 [2022]; see also People v Maffei, 35 NY3d 264, 269-270 [2020]). To the extent that defendant‘s claims are based upon the transcript of the proceedings, they are either unsupported or contradicted by the record (see People v Huebsch, 199 AD3d at 1176). Were we to address them despite the lack of preservation, we would find that defendant received a favorable plea agreement, particularly given the video recording, and has not demonstrated that counsel lacked a strategic or other legitimate explanation for his actions or that he was denied meaningful representation (see People v Clark, 28 NY3d 556, 562-563 [2016]; People v Benevento, 91 NY2d 708, 712-713 [1998]). Defendant‘s remaining claims similarly lack merit.
Aarons, J.P., Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed.