At page 1549 Review of plea waiver validity and ineffective assistance of counsel claims6 citing casesant pleaded guilty to an indictment charging her with burglary in the second degree, criminal solicitation in the third degree and petit larceny, and waived…
- People v. Taylor, 207 A.D.3d 806 (N.Y. App. Div. 3d Dep't 2022).publishedDefendant's claim that counsel failed to adequately communicate and advise him of his sentencing exposure, appellate rights and choice between entering a guilty plea or proceeding to trial all involve matters outside the record and are thu…
- People v. Jones, 203 A.D.3d 1307 (N.Y. App. Div. 3d Dep't 2022).publishedAlthough the practice of inserting a waiver of appeal in a lengthy written guilty plea document is disfavored given the potential that the separate and distinct nature of the waiver will be less than clear ( see People v Thomas , 153 AD2d…
- People v. Weidenheimer, 181 A.D.3d 1096 (N.Y. App. Div. 3d Dep't 2020).publishedThe balance of defendant's ineffective assistance of counsel claim, including that counsel failed to adequately investigate the law or the facts surrounding the charges or explore potential defenses, concern matters outside of the record a…
- People v. Hackett, 2018 NY Slip Op 8384 (N.Y. App. Div. 3d Dep't 2018).publishedDefendant's claims that counsel failed to communicate with him about a proposed plea, conduct a thorough investigation, devise an effective trial strategy, obtain relevant evidence and retain an expert and dissuaded him from testifying inv…
- People v. Cantey, 2018 NY Slip Op 3774 (N.Y. App. Div. 3d Dep't 2018).publishedDefendant's ineffective assistance of counsel claim, which is largely premised upon his assertion that one or more of the attorneys assigned to represent him failed to explore viable defenses and/or offered him erroneous advice with regard…
- People v. Smith, 155 A.D.3d 1244 (N.Y. App. Div. 3d Dep't 2017).publishedAs for defendant’s ineffective assistance of counsel claim, certain of the arguments now advanced—including counsel’s alleged failure to adequately explore potential defenses and sufficiently explain the various options available to defend…
At page 1548 Egan Jr., J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered April 23, 2014, convicting defendant upon her plea of guilty…1 citing case
- People v. Thomas, 153 A.D.3d 1445 (N.Y. App. Div. 3d Dep't 2017).published Further, the lengthy written plea agreement in which the waiver of the right to appeal appears does not distinguish in any meaningful way the separate and distinct nature of the appeal waiver (see People v Breault, 150 AD3d 1548, 1548 [201…
v.
Heather Breault, Appellant
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered April 23, 2014, convicting defendant upon her plea of guilty of the crimes of burglary in the second degree, criminal solicitation in the third degree and petit larceny.
In exchange for the statutory minimum prison term, defend[*1549] ant pleaded guilty to an indictment charging her with burglary in the second degree, criminal solicitation in the third degree and petit larceny, and waived her right to appeal. In accordance with the plea agreement, County Court sentenced defendant to concurrent prison terms that resulted in an aggregate maximum of 3x/2 years, followed by IV2 years of postrelease supervision. Defendant appeals.
Initially, we agree with defendant that the waiver of the right to appeal was not valid. County Court did not apprise defendant “that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Mitchell, 144 AD3d 1327, 1328 [2016]). Further, a review of the lengthy written plea agreement—in which the waiver of the right to appeal is effectively buried—does not reflect that defendant initialed the section waiving her appellate rights, and, further, does not distinguish the separate and distinct nature of the appeal waiver from the trial-related rights being forfeited. As such, we do not find that “defendant understood the content or consequences of the appeal waiver” (People v Herbert, 147 AD3d 1208, 1209 [2017] [internal quotation marks and citation omitted]; see People v Bradshaw, 18 NY3d at 264).
Defendant further contends that she was denied the effective assistance of counsel. Defendant’s claims in this regard— including that neither of her attorneys diligently investigated the law or facts surrounding the charges, sufficiently communicated with her or advised her of applicable defenses— primarily concern matters outside of the record and, therefore, are more properly the subject of a CPL article 440 motion (see People v Lewis, 143 AD3d 1183, 1185 [2016]). Defendant’s remaining assertions with respect to her claim of ineffective assistance of counsel are unpreserved as the record does not reflect that she made an appropriate postallocution motion (see id. at 1185; People v Soprano, 135 AD3d 1243, 1243 [2016], lv denied 27 NY3d 1007 [2016]; People v Smalls, 128 AD3d 1281, 1282 [2015], lv denied 27 NY3d 1006 [2016]). Finally, defendant’s challenge to the sentence as harsh and excessive is without merit given that she received the minimum term of imprisonment for the violent felony offense of burglary in the second degree (see Penal Law § 70.02 [3] [b]).
Peters, P.J., McCarthy, Devine and Mulvey, JJ., concur.Ordered that the judgment is affirmed.