People v. Weidenheimer, 181 A.D.3d 1096 (N.Y. App. Div. 3d Dep't 2020). · Go Syfert
People v. Weidenheimer, 181 A.D.3d 1096 (N.Y. App. Div. 3d Dep't 2020). Cases Citing This Book View Copy Cite
31 citation events (31 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2020 → 2026 · click a year to view as-of
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At page 1097 Reviewing preservation requirements for post-sentencing claims20 citing cases18 listed here
  • People v. Washington, 206 A.D.3d 1278 (N.Y. App. Div. 3d Dep't 2022).published 2 cites
    In any event, his claim that counsel failed to investigate a potential defense involves a matter outside the record, and it is therefore the proper subject of a CPL article 440 motion ( see People v Sanders , 203 AD3d 1403, 1404 [2022]; Pe…
  • People v. Almanzar, 205 A.D.3d 1266 (N.Y. App. Div. 3d Dep't 2022).published
    Defendant affirmed that he had discussed the written waiver with counsel and that he understood its ramifications ( see People v Christy , 200 AD3d 1322, 1323 [2021]; People v Weidenheimer , 181 AD3d 1096, 1097 [2020]).
  • People v. Goodwalt, 205 A.D.3d 1070 (N.Y. App. Div. 3d Dep't 2022).published 2 cites
    His assertions as to what counsel advised or failed to advise regarding possible defenses and the strength of the People's case are outside of the record on direct appeal ( see People v Johnson , 194 AD3d 1267, 1269 [2021]; People v Miller…
  • People v. Sykes, 204 A.D.3d 1244 (N.Y. App. Div. 3d Dep't 2022).published
    Such claim, however, is unpreserved for our review in the absence of an appropriate postallocution motion, despite defendant having an opportunity to do so prior to sentencing ( see People v Dickerson , 198 AD3d 1190, 1192-1193 [2021]; Peo…
  • People v. Jackson, 203 A.D.3d 1388 (N.Y. App. Div. 3d Dep't 2022).published
    Defendant's claim of ineffective assistance of counsel is similarly unpreserved for lack of an appropriate postallocution motion ( see People v Morehouse , 183 AD3d 1180, 1183 [2020], lv denied 35 NY3d 1068 [2020]; People v Weidenheimer ,…
  • People v. McCoy, 198 A.D.3d 1021 (N.Y. App. Div. 3d Dep't 2021).published
    Moreover, defendant did not make any statements during the plea colloquy that were inconsistent with his guilt, negated an essential element of the charged crime or otherwise called into question the voluntariness of his plea and, therefor…
  • People v. Chrise, 197 A.D.3d 1357 (N.Y. App. Div. 3d Dep't 2021).published
    Although this claim survives defendant's unchallenged waiver of appeal, it is unpreserved for our review in that he did not object or move to withdraw his guilty plea, despite ample opportunity to do so prior to sentencing ( see People v W…
  • People v. Murray, 197 A.D.3d 1355 (N.Y. App. Div. 3d Dep't 2021).published
    The narrow exception to the preservation requirement does not apply, as defendant did not make any statements during the plea colloquy that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into…
  • People v. Mirel, 194 A.D.3d 1198 (N.Y. App. Div. 3d Dep't 2021).published
    Accordingly, and insofar as we discern no other infirmities of the waiver ( compare People v Thomas , 34 NY3d 545 , 562-563 [2019]), we are satisfied that defendant's appeal waiver was knowing, intelligent and voluntary ( see People v Eato…
  • People v. Aponte, 190 A.D.3d 1031 (N.Y. App. Div. 3d Dep't 2021).published
    To the extent that defendant's ineffective assistance of counsel claim implicates the voluntariness of his plea, it is likewise [*2]unpreserved for our review for failure to make an appropriate postallocution motion ( see People v Weidenhe…
Show 8 more citing cases
  • People v. Miller, 190 A.D.3d 1029 (N.Y. App. Div. 3d Dep't 2021).published
    The balance of defendant's ineffective assistance of counsel claim, which consists of allegations that counsel, among other things, failed to properly investigate defendant's prior criminal history or properly research the applicable law,…
  • People v. Feltz, 190 A.D.3d 1026 (N.Y. App. Div. 3d Dep't 2021).published
    Accordingly, we find that defendant validly waived his right to appeal his conviction and sentence, thereby precluding his challenge to the severity of the agreed-upon sentence ( see People v Carl , 188 AD3d 1304 , ___, 133 NYS3d 346, 350…
  • People v. Hart, 188 A.D.3d 1424 (N.Y. App. Div. 3d Dep't 2020).published
    Upon reviewing the record, we find that the narrow exception to the preservation requirement is inapplicable, as defendant did not make any statements during the plea colloquy that negated an element of the charged crimes, were inconsisten…
  • People v. Carl, 188 A.D.3d 1304 (N.Y. App. Div. 3d Dep't 2020).published
    Defendant next contends that his guilty pleas were not knowing, voluntary and intelligent because County Court did not apprise him of all the trial-related constitutional rights that he would be forfeiting by pleading guilty, an argument t…
  • People v. White, 185 A.D.3d 1355 (N.Y. App. Div. 3d Dep't 2020).published
    After doing so, he communicated to County Court that he understood the waiver, had signed it and did not have any questions ( see People v Weidenheimer , 181 AD3d at 1097; People v Hall , 167 AD3d 1165 , 1165-1166 [2018], lvs denied 32 NY3…
  • People v. Pugliese, 185 A.D.3d 1358 (N.Y. App. Div. 3d Dep't 2020).published
    In addition, after reviewing the written appeal waiver with counsel in open court, defendant stated that she read and understood it, and that she had affixed her signature ( see People v Weidenheimer , 181 AD3d at 1097; People v Hall , 167…
  • People v. Apelles, 185 A.D.3d 1298 (N.Y. App. Div. 3d Dep't 2020).published
    Given the valid appeal waiver, defendant's challenge to the severity of the sentence, which was less than County Court originally promised, is precluded ( see People v Gumbs , 182 AD3d 701, 703 [2020]; People v Weidenheimer , 181 AD3d 1096…
  • People v. Stanley, 189 A.D.3d 1818 (N.Y. App. Div. 3d Dep't 2020).published
    Further, "defendant did not make any statements during the plea colloquy that would trigger the narrow exception to the preservation rule" ( People v Tamah , 133 AD3d 923, 924 [2015]; see People v Weidenheimer , 181 AD3d 1096, 1097 [2020]).
At page 1096 Determining validity of appeal waiver5 citing cases
  • People v. Dobbs, 217 A.D.3d 1275 (N.Y. App. Div. 3d Dep't 2023).published
    Defendant was aware that the appeal waiver was a term and condition of his plea agreement, and County Court explained the separate and distinct nature of the waiver, distinguishing it from the trial-related rights that defendant would be f…
  • People v. Wilson, 194 A.D.3d 1195 (N.Y. App. Div. 3d Dep't 2021).published
    We are accordingly satisfied that defendant's appeal waiver was knowing, voluntary and intelligent ( see People v Sanders , 25 NY3d at 339—341; People v Weidenheimer , 181 AD3d 1096, 1096-1097 [2020]).
  • People v. Mosher, 191 A.D.3d 1170 (N.Y. App. Div. 3d Dep't 2021).published
    Accordingly, we find that defendant knowingly, intelligently and voluntarily waived his right to appeal ( see People v Pizarro , 185 AD3d 1092, 1092-1093 [2020]; People v Weidenheimer , 181 AD3d 1096, 1096-1097 [2020]), and is thus preclud…
  • People v. Crossley, 191 A.D.3d 1046 (N.Y. App. Div. 3d Dep't 2021).published
    County Court explained that the waiver was separate and distinct from the trial-related rights that defendant was forfeiting by pleading guilty, and defendant, who was aware that such waiver was a term and condition of the plea agreement,…
  • People v. Pizarro, 185 A.D.3d 1092 (N.Y. App. Div. 3d Dep't 2020).published
    Accordingly, and discerning no other infirmities with the appeal waiver ( compare People v Thomas , 34 NY3d 545 , 562-563 [2019]), we conclude that defendant validly waived the right to appeal his conviction and sentence ( see People v Wei…
Retrieving the full opinion text from the archive…
People
v.
Weidenheimer
110036.
Appellate Division of the Supreme Court of the State of New York.
Mar 16, 2020.
Published opinion
181 A.D.3d 1096
Cited by 23 opinions  |  Published
People v Weidenheimer (2020 NY Slip Op 01861)
People v Weidenheimer
2020 NY Slip Op 01861
Decided on March 16, 2020
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: March 16, 2020

110036

[*1]The People of the State of New York, Respondent,

v

Christopher Weidenheimer, Appellant.


Calendar Date: February 18, 2020
Before: Egan Jr., J.P., Lynch, Mulvey, Devine and Colangelo, JJ.

Erin C. Morigerato, Albany, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.



[*~1096–1097]

Devine, J.

Appeal from a judgment of the County Court of Franklin County (Richards, J.), rendered November 29, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to criminal possession of a weapon in the third degree and waived the right to appeal. County Court thereafter sentenced him to 180 days in jail and five years of probation, to be served concurrently. Defendant appeals.

We affirm. Contrary to defendant's contention, the record demonstrates that he knowingly, intelligently and voluntarily waived the right to appeal. The record reflects that the appeal waiver was a condition of the plea agreement, that County Court explained the separate and distinct nature of the waiver and that defendant affirmed his understanding thereof (see People v Feurtado, 172 AD3d 1620, 1620 [2019], lv denied 34 NY3d 931 [2019]; People v Johnson, 153 AD3d 1031, 1032 [2017], lv denied 30 NY3d 980 [2017]). Additionally, defendant signed a written waiver in open court and, in response to County Court's questioning, indicated that he had reviewed the written waiver, discussed its contents with counsel prior to signing it and understood its terms (see People v White, 172 AD3d 1822, 1823 [2019], lv denied 33 NY3d 1110 [2019]; People v Hall, 167 AD3d 1165, 1165-1166 [2018], lvs denied 32 NY3d 1201, 1204 [2019]). Accordingly, and insofar as we discern no other infirmities with the appeal waiver (compare People v Thomas, ___ NY3d ___, ___, 2019 NY Slip Op 08545, *6-7 [2019]), we conclude that defendant validly waived the right to appeal his conviction and sentence. Defendant's valid appeal waiver precludes his contention that his sentence is harsh and excessive (see People v Snare, 174 AD3d 1222, 1223 [2019], lv denied 34 NY3d 984 [2019]; People v Cannelli, 173 AD3d 1567, 1568 [2019]).

[*~1096–1098]

Defendant's challenge to the voluntariness of his plea and his ineffective assistance of counsel claim, to the extent that it impacts the voluntariness of his plea, survive his appeal waiver but are unpreserved for our review given that the record does not reflect that he made an appropriate postallocution motion despite having the opportunity to do so (see People v Griffin, 177 AD3d 1039, 1040 [2019], lv denied 34 NY3d 1078 [2019]; People v White, 172 AD3d at 1823). Moreover, defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v Richards, 176 AD3d 1496, 1499 [2019]; People v Mastro, 174 AD3d 1232, 1232 [2019]). Accordingly, defendant's contention that County Court failed to advise him of the constitutional trial-related rights that he was forfeiting by pleading guilty (see Boykin v Alabama, 395 US 238, 243 [1969]) was not preserved (see People v Conceicao, 26 NY3d 375, 382 [2015]; People v Small, 166 AD3d 1237, 1238 [2018]). In any event, the record reflects that defendant was fully advised of and understood the waiver of his trial-related rights (see People v Conceicao, 26 NY3d at 381-384; People v Toledo, 144 AD3d 1332, 1333 [2016], lv denied 29 NY3d 1001 [2017]). The 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 and are more properly the subject of a CPL article 440 motion (see People v Moore, 169 AD3d 1110, 1112 [2019], lv denied 33 NY3d 979 [2019]; People v Breault, 150 AD3d 1548, 1549 [2017]).

[*~1097–1098]

Egan Jr., J.P., Lynch, Mulvey and Colangelo, JJ., concur.

ORDERED that the judgment is affirmed.