People v. GuyettePeople v. Guyette
In full satisfaction of a 74-count indictment (as well as any additional charges stemming from the images seized from defendant‘s residence in April 2011), defendant pleaded guilty to 10 counts of promoting a sexual performance by a child and 10 counts of possessing a sexual performance by a child and waived his right to appeal. County Court denied defendant‘s subsequent request to redact certain information from the presentence investigation report and sentenced defendant to the agreed-upon prison term of 1 to 3 years on each count—said sentences to run concurrently. Defendant now appeals.
To the extent that defendant contends that his waiver of the right to appeal was invalid, we disagree. A review of the plea colloquy reveals that County Court explained the separate and distinct nature of such waiver and, further, confirmed that defendant understood the written waiver that he executed following consultation with counsel. Accordingly, we conclude that
Although defendant‘s challenge to the voluntariness of his plea survives his valid waiver of appeal, this issue nonetheless is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v Dozier, 115 AD3d 1001, 1001 [2014]; People v Sylvan, 107 AD3d 1044, 1045 [2013], lv denied 22 NY3d 1141 [2014]).* Moreover, the narrow exception to the preservation requirement was not implicated here, as defendant did not make any statements during his plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v Hare, 110 AD3d 1117, 1117 [2013]; People v Revette, 102 AD3d 1065, 1066 [2013]). In any event, defendant‘s present claim—that he is “borderline mentally retarded“—finds no support in the record. Notably, defendant expressly denied taking “any kind of drugs or medication” or “suffering from any kind of illness that would make it difficult for [him] to understand what [was] being said” during the plea colloquy, and our review of the record fails to disclose any indication that defendant suffered from an intellectual impairment that impacted the voluntariness of his plea (cf. People v Chavis, 117 AD3d 1193, 1194 [2014]; People v Rought, 90 AD3d 1247, 1248 [2011], lv denied 18 NY3d 962 [2012]).
Finally, although defendant now contends that counsel failed to properly advance and document his asserted intellectual impairments, this claim implicates matters outside the record and, as such, is more properly considered in the context of a
Stein, J.P., McCarthy, Lynch and Clark, JJ., concur. Ordered that the judgment is affirmed.