People v. LambPeople v. Lamb
Published by New York State Law Reporting Bureau pursuant to
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Rumsey, JJ.
Noreen McCarthy, Keene Valley, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Jоseph A. Frandino of counsel), for respondent.
MEMORANDUM AND ORDER
Aarons, J.
Appeals (1) from a judgment of the County Court of Washington County (McKeighan, J.), rendered September 12, 2014, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree, and (2) by рermission, from an order of said court, entered February 17, 2017, which denied defendant‘s motion pursuant to
In August 2014, and in full satisfaction of a three-count indictment, defendant pleaded guilty to a single count of criminal possession of a controlled substance in the third degree with the understanding that hе would be sentenced as a second felony offender to a prison term of seven years followed by two years of postrelease supervision. County Court thereafter sentenced defendant in accordance with the terms of the plea agreement. In Novembеr 2015, defendant moved pursuant to
Although the People concede — and we agree — that defendant‘s waiver of thе right to appeal was invalid, defendant‘s challenge to the voluntariness of his plea is unpreserved for our review in the context of his direct appeal absent record evidence of an appropriate postallocution motion (see People v Muller, 159 AD3d 1232, 1232 [2018]; People v Darrell, 145 AD3d 1316, 1317 [2016], lv denied 29 NY3d 1125 [2017]), as is his claim that his plеa was coerced due to County Court‘s purportedly inaccurate statements regarding his felony offender status and the future impact thеreof (see People v Sparbanie, 158 AD3d 942, 944 [2018], lv denied ___ NY3d ___ [May 30, 2018]; People v Wheeler, 128 AD3d 1177, 1178 [2015]; see also People v Roche, 106 AD3d 1328, 1329 [2013]). Defendant‘s ineffective assistance of counsel claim — to the extent that it impacts upon the voluntariness of his plea — is similarly unpreserved for review on direct appeal (see People v Gause, 159 AD3d 1277, 1278 [2018]; People v Robinson, 155 AD3d 1252, 1253 [2017], lv denied 30 NY3d 1119 [2018]). Additionally, defendant did not make any statements during his allocution that сast doubt upon his guilt or negated an element of the charged crime (see People v Bailey, 158 AD3d 948, 948 [2018]; People v Williams, 155 AD3d 1253, 1254 [2017], lv denied ___ NY3d ___ [May 14, 2018]), and nothing on the face of the colloquy calls into question eithеr the voluntariness of defendant‘s plea or his capacity to enter into it (cf. People v Park, 159 AD3d 1132, 1133 [2018], lv denied ___ NY3d ___ [May 30, 2018]; People v Shaw, 157 AD3d 1138, 1139-1140 [2018]). “As there was no basis for further inquiry by County Court, defendant‘s challenge tо the voluntariness of his plea does not fall within the narrow exception to the preservation requirement” (People v White, 157 AD3d 1128, 1130 [2018] [citations omitted], lv denied 31 NY3d 1018 [2018]). Were we to consider thеse arguments on defendant‘s direct appeal, we would find them to be lacking in merit.
County Court expressly asked defendant whether he had cоnsumed any drugs or alcohol within the 24 hours preceding his plea allocution, whether he had been treated for any mental illness or psychоlogical disorder within the past five years and whether there was any physical or mental health condition that impeded his ability to understand whаt was transpiring in court that day; defendant responded “No” to each of those
Turning to defendant‘s motion to vacate the judgment of conviction, the bulk of the arguments advanced by defendant were or could have been raised on his direct appeal and, as “sufficient facts appear on the record with respect [there]to,” such claims are not properly the subject of а
To the extent that defendant‘s motion to vacatе is predicated upon his claim of actual innocence, “we note that vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial and defendant‘s plea of guilty therefore foreclose[s] relief upon this grоund” (People v DePerno, 148 AD3d 1463, 1464 [2017] [internal quotation marks and citations omitted], lv denied 29 NY3d 1030 [2017]; see
The medical records accompanying defendant‘s affidavit indeed document a medication change, and dеfendant also included information regarding the potential side effects of his prescribed medications. However, defendant‘s claims оf mental confusion are belied by the transcript of the plea colloquy (see People v Ryder, 136 AD3d 1109, 1110 [2016], lv denied 27 NY3d 1005 [2016]), the record does not otherwise establish that defendant was suffering from any side effects of his medications at the time that he pleaded guilty and he has offered nothing other than his self-serving affidavit to substantiate his claim that defense counsel effectively advised him to perjure himself during his allocution (see e.g. People v Lewis, 138 AD3d 1346, 1348-1349 [2016], lv denied 28 NY3d 1073 [2016]). Under these circumstances, we cannot sаy that County Court abused its discretion in denying defendant‘s motion to vacate without a hearing. Defendant‘s remaining arguments, including his claim that the agreed-upon sentence imposed was harsh and excessive, have been examined and found to be lacking in merit.
Garry, P.J., Egan Jr., Mulvey and Rumsey, JJ., concur.
ORDERED that the judgment and order are affirmed.