People v. McRae

Aarons, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 9, 2013, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree. Pursuant to a negotiated plea agreement, and in full satisfaction of a two-count indictment and other then-pending charges, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree and executed a written waiver of appeal in open court. Consistent with the terms of the plea agreement, County Court imposed upon defendant, as a nonviolent predicate felony offender, a prison sentence of seven years to be followed by three years of postrelease supervision. Defendant now appeals. *1329 We affirm. Initially, we find that defendant’s oral and written waiver of appeal was knowing, voluntary and intelligent (see People v Sanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]). The record reflects that County Court distinguished the right to appeal as “separate and apart” from the rights automatically forfeited by a guilty plea, and defendant acknowledged that he signed and understood the written appeal waiver after reviewing it and conferring with counsel regarding its contents (see People v Hall, 147 AD3d 1151, 1151 [2017]; People v Dolberry, 147 AD3d 1149, 1150 [2017]). While defendant’s challenge to the voluntariness of his plea survives the appeal waiver, this claim was not preserved by an appropriate postallocution motion (see People v Smith, 121 AD3d 1131, 1132 [2014], lv denied 24 NY3d 1123 [2015]; People v Waite, 120 AD3d 1446, 1447 [2014]), and defendant made no statements during the plea colloquy that triggered the narrow exception to the preservation requirement (see People v Williams, 27 NY3d 212, 219-220 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]; People v Austin, 141 AD3d 956, 957 [2016]). Defendant’s claim that the sentence was harsh and excessive is foreclosed by the valid appeal waiver (see People v Macon, 142 AD3d 739, 739 [2016], lv denied 28 NY3d 1073 [2016]; People v Rushlow, 137 AD3d 1482, 1483 [2016]), which includes his “right to invoke [this Court’s] interest-of-justice jurisdiction to reduce the sentence” (People v Bethea, 133 AD3d 1033, 1033 [2015] [internal quotation marks and citations omitted], lv denied 27 NY3d 992 [2016]). To the extent that defendant raises a claim regarding what counsel investigated or discussed with him, this concerns a matter that is outside the record on appeal and is more properly suited for a CPL article 440 motion (see People v Daniels, 139 AD3d 1256, 1257 [2016], lv denied 28 NY3d 1183 [2017]; People v Taylor, 135 AD3d 1237, 1238 [2016], lv denied 27 NY3d 1075 [2016]). Peters, P.J., Garry, Devine and Mulvey, JJ., concur. Ordered that the judgment is affirmed.