People v. Beverly , 34 N.Y.S.3d 245 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 16, 2016 106880
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
KEON BEVERLY, Also Known as
LIGHT,
Appellant.
________________________________
Calendar Date: April 25, 2016
Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.
__________
Aaron A. Louridas, Delmar, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Jodi
A. Danzig of counsel), for respondent.
__________
Lynch, J.
Appeal from a judgment of the County Court of Albany County
(Breslin, J.), rendered January 11, 2011, convicting defendant
upon his plea of guilty of the crime of criminal sale of a
controlled substance in the third degree.
As a result of an investigation into narcotics trafficking
by the Attorney General's Organized Crime Task Force, defendant
was charged in an indictment with conspiracy in the second degree
and two counts of criminal sale of a controlled substance in the
third degree. Pursuant to a negotiated agreement, defendant
pleaded guilty to one count of criminal sale of a controlled
substance in the third degree. He was sentenced as a second
felony offender, in accordance with the agreement, to a seven-
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year prison term followed by 1½ years of postrelease supervision
and now appeals.
We affirm. To begin, we find that defendant knowingly and
intelligently waived his right to appeal (see People v Lopez, 6
NY3d 248, 256 [2006]; see also People v Sanders, 25 NY3d 337,
340-341 [2015]). County Court thoroughly advised defendant of
the constitutional rights being forfeited upon a guilty plea (see
People v Tyrell, 22 NY3d 359, 365 [2013]), and then asked
whether, "separate and apart, independent of the trial rights you
give up by virtue of the plea, do you understand [that] the plea
bargain requires that you give up your right to appeal the
conviction as well as the sentence that I will impose here?"
Defendant responded in the affirmative. This colloquy confirms
that defendant was duly apprised of the distinction between the
rights automatically forfeited upon a plea and the additional
requirement here of an appeal waiver. Given defendant's valid
appeal waiver, his challenge to the severity of the sentence is
foreclosed (see People v Lopez, 6 NY3d at 256; People v Clapper,
133 AD3d 1037, 1038 [2015], lv denied 27 NY3d 995 [2016]).
Defendant's claims that his guilty plea was not voluntary
and that counsel failed to provide effective assistance with
respect to the plea survive the appeal waiver, but were not
preserved for our review by an appropriate postallocution motion,
and no statements were made during the plea colloquy triggering
the narrow exception to the preservation requirement (see CPL
220.60 [3]; People v Lopez, 71 NY2d 662, 665-666 [1988]; People v
Pickett, 128 AD3d 1275, 1276 [2015], lv denied 26 NY3d 933
[2015]). Recognizing as much in his brief, defendant seeks to
have us vacate the plea in the interest of justice (see CPL
470.15 [6] [a]). We are not persuaded to do so.
The majority of defendant's claims concern matters that are
outside the record on appeal, such as what counsel discussed with
or provided to him, and are more properly raised in a CPL article
440 motion (see People v Taylor, 135 AD3d 1237, 1237 [2016]).
Further, a review of the plea allocution demonstrates that
defendant was adequately informed of the plea terms and the
rights that he was foregoing, that he understood the consequences
of his plea and had sufficient time to discuss the proof against
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him and possible defenses with counsel. Defendant confirmed that
he was pleading guilty of his own free will and unequivocally
admitted the charged conduct. Moreover, defendant expressed
satisfaction with counsel, who negotiated a favorable plea deal
to a single sale count for which defendant received a sentence
well below the maximum possible consecutive sentences if he had
been convicted on each of the cocaine sales (see Penal Law
§§ 70.25 [3]; 70.70 [1] [b]; [3] [b] [i]). That defendant opted
to plead guilty, confirming that he had sold cocaine even though
the lab test results may not have been available to him, does not
compromise the viability of the plea. As such, were these issues
properly before us, we would find that they lack merit.
Lahtinen, J.P., Rose, Clark and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court