People v. Smith, 119 A.D.3d 1088 (N.Y. App. Div. 2014). · Go Syfert
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People v. Smith, 119 A.D.3d 1088 (N.Y. App. Div. 2014). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 1 distinct court.
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Sims
N.Y. App. Div. · 2022 · confidence medium
Defendant's appeal waiver precludes his related contention that the court, in sentencing him, considered unreliable information ( see People v Smith , 119 AD3d 1088, 1089 [2014], lvs denied 24 NY3d 1084 , 1089 [2014]) and such contention is, in any event, unsupported by the record.
discussed Cited as authority (rule) People v. Ortiz
N.Y. App. Div. · 2022 · confidence medium
These arguments are addressed "to the procedures utilized in determining his sentence and do[] not implicate the legality of the sentence or the power of the court to impose it," and such claims are generally precluded by a valid or unchallenged appeal waiver ( People v Smith , 119 AD3d 1088, 1089 [2014], lvs denied 24 NY3d 1084 , 1089 [2014]; see People v Brown , 37 NY3d 940 , 941-942 [2021]; People v Callahan , 80 NY2d 273, 281 [1992]; People v Medina , 129 AD3d 1385, 1386 [2015], lv denied 26 NY3d 1090 [2015]).
discussed Cited as authority (rule) People v. Perkins
N.Y. App. Div. · 2016 · confidence medium
Further, the narrow exception to the preservation rule was not triggered here, “as defendant did not make any statements during the plea allocution that negated an essential element of the crime or otherwise cast doubt upon his guilt” (People v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]; see People v White, 104 AD3d 1056, 1056 [2013], lv denied 21 NY3d 1021 [2013]).
discussed Cited as authority (rule) People v. Islam
N.Y. App. Div. · 2015 · confidence medium
To the extent that defendant’s ineffective assistance claim impacts upon the voluntariness of his plea, it is unpreserved for our review as the record does not reflect that a postallocution motion was made (see People v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]) and reversal in the interest of justice is unwarranted (see People v Newton, 113 AD3d 1000, 1001 [2014], lv denied 23 NY3d 1041 [2014]).
discussed Cited as authority (rule) People v. Islam
N.Y. App. Div. · 2015 · confidence medium
To the extent that defendant’s ineffective assistance claim impacts upon the voluntariness of his plea, it is unpreserved for our review as the record does not reflect that a postallocution motion was made (see People v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]) and reversal in the interest of justice is unwarranted (see People v Newton, 113 AD3d 1000, 1001 [2014], lv denied 23 NY3d 1041 [2014]).
discussed Cited as authority (rule) People v. Pandori
N.Y. App. Div. · 2015 · confidence medium
Although defendant’s remaining claim — that his plea was not voluntarily entered due to the ineffective assistance of counsel — survives his appeal waiver, it is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]; People v Livziey, 117 AD3d 1341, 1342 [2014]).
discussed Cited as authority (rule) People v. Bethea
N.Y. App. Div. · 2015 · confidence medium
Similarly, defendant’s claim of ineffective assistance of counsel — to the extent that it impacts upon the voluntariness of his plea — is unpreserved for our review in the absence of an appropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]; People v Watson, 110 AD3d 1110 , 1111 [2013], lv denied 22 NY3d 1160 [2014]).
discussed Cited as authority (rule) People v. Medina
N.Y. App. Div. · 2015 · confidence medium
Finally, to the extent that defendant contends that County Court’s comments reflect that it relied upon inaccurate and/or unreliable information in imposing sentence, inasmuch as defendant’s argument on this point “amounts to a challenge to the procedures utilized in determining his sentence and does not implicate the legality of the sentence or the power of the court to impose it, defendant’s valid waiver of the right to appeal precludes our review of such claim” (People v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]).
discussed Cited as authority (rule) People v. Smalls
N.Y. App. Div. · 2015 · confidence medium
Defendant’s claim of ineffective assistance of counsel, to the extent that it survives her appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that she made an appropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]).
discussed Cited as authority (rule) People v. Smalls
N.Y. App. Div. · 2015 · confidence medium
Defendant’s claim of ineffective assistance of counsel, to the extent that it survives her appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that she made an appropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014], lv denied 24 NY3d 1089 [2014]).
discussed Cited as authority (rule) People v. Spellicy
N.Y. App. Div. · 2014 · confidence medium
While the voluntari *1230 ness of a plea may be challenged where there is an appeal waiver (see People v Barnes, 119 AD3d 1290, 1290-1291 [2014]), here, the claim is not preserved for appellate review because defendant did not make an appropriate postallocution motion (see id. at 1291 ; People v Smith, 119 AD3d 1088, 1089 [2014]).
discussed Cited as authority (rule) People v. White
N.Y. App. Div. · 2014 · confidence medium
To the extent that this claim has a bearing upon the voluntariness of defendant’s plea, we find that it is unpreserved due to defendant’s failure to make an appropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014]; People v Flake, 95 AD3d 1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Stevenson, 58 AD3d 948, 949 [2009], lv denied 12 NY3d 860 [2009]).
discussed Cited as authority (rule) People v. White
N.Y. App. Div. · 2014 · confidence medium
To the extent that this claim has a bearing upon the voluntariness of defendant’s plea, we find that it is unpreserved due to defendant’s failure to make an appropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014]; People v Flake, 95 AD3d 1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Stevenson, 58 AD3d 948, 949 [2009], lv denied 12 NY3d 860 [2009]).
discussed Cited as authority (rule) PeoplevWhite
N.Y. App. Div. · 2014 · confidence medium
To the extent that this claim has a bearing upon the voluntariness of defendant's plea, we find that it is unpreserved due to defendant's failure to make an appropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014]; People v Flake, 95 AD3d 1371, 1372 [2012], lvs denied 19 NY3d 973 , 974 [2012]; People v Stevenson, 58 AD3d 948, 949 [2009], lv denied 12 NY3d 860 [2009]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Derrick Smith, Also Known as GS
Appellate Division of the Supreme Court of the State of New York.
Jul 10, 2014.
119 A.D.3d 1088
Devine, Egan, Lynch, Peters, Rose.
Cited by 14 opinions  |  Published
Peters, PJ.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered April 23, 2012, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

Defendant was charged in an indictment with murder in the second degree and two counts of criminal possession of a weapon in the second degree. After a jury trial had commenced, he pleaded guilty to manslaughter in the first degree and waived his right to appeal in exchange for a promised determinate prison sentence of between 15 and 20 years. County Court admonished defendant that as long as he remained trouble free and “there’s no other issues between now and the sentencing as far as any accusations of tampering with witnesses ... or interfering in any other cases,” it would “consider that a big factor in getting [defendant] down towards the minimum end of the [plea bargain] range.”

[*1089] While awaiting sentencing, defendant was indicted on various counts of conspiracy alleging that he had conspired to murder certain witnesses who testified at his trial and to intimidate a witness in another criminal action. At sentencing, the People asserted that defendant violated the terms of the plea agreement and sought an enhanced sentence of 25 years in prison. Following a hearing, County Court denied the People’s application and sentenced defendant, consistent with the terms of the plea agreement, to 20 years in prison followed by five years of postrelease supervision. Defendant appeals.

Defendant argues that, in sentencing him to the maximum allowable term of imprisonment under the plea agreement, County Court improperly considered unreliable and inaccurate information regarding his postplea conduct. Inasmuch as this claim amounts to a challenge to the procedures utilized in determining his sentence and does not implicate the legality of the sentence or the power of the court to impose it, defendant’s valid waiver of the right to appeal precludes our review of such claim (see People v Callahan, 80 NY2d 273, 281 [1992]; People v Rahim, 78 AD3d 1240, 1241 [2010]; People v Hooten, 34 AD3d 941, 941 [2006]; People v Andre L., 18 AD3d 575, 576 [2005], lv denied 5 NY3d 850 [2005]; People v Hicks, 201 AD2d 831, 832 [1994], lv denied 83 NY2d 911 [1994]). Were we to consider the issue, we would find that the hearing conducted was sufficient to enable County Court to assure itself “ ‘that the information upon which it base[d] the sentence [was] reliable and accurate’ ” (People v Naranjo, 89 NY2d 1047, 1049 [1997], quoting People v Outley, 80 NY2d 702, 712 [1993]; see People v Rollins, 50 AD3d 1535, 1536 [2008], lv denied 10 NY3d 939 [2008]).

To the extent that defendant’s ineffective assistance of counsel claim impacts the voluntariness of his plea and, therefore, survives his valid appeal waiver, it is nonetheless unpreserved for our review inasmuch as the record does not reveal that he made an appropriate postallocution motion (see People v Lohnes, 112 AD3d 1148, 1150 [2013]; People v Moses, 110 AD3d 1118, 1118 [2013]; People v Sczepankowski, 110 AD3d 1115, 1116 [2013]). Defendant’s contention that his plea was coerced is similarly unpreserved (see People v Ross, 117 AD3d 1342, 1342-1343 [2014]; People v Jones, 114 AD 3d 1080, 1081 [2014]; People v Squitieri, 60 AD3d 1208, 1209 [2009], lv denied 13 NY3d 839 [2009]). The narrow exception to the preservation rule is not implicated, as defendant did not make any statements during the plea allocution that negated an essential element of the crime or otherwise cast doubt upon his guilt (see id.). In any event, a review of the plea proceedings satisfies us[*1090] that defendant’s guilty plea was knowingly, voluntarily and intelligently made.

The remaining arguments advanced in defendant’s pro se brief have been examined and found to be lacking in merit.

Rose, Egan Jr., Lynch and Devine, JJ., concur.

Ordered that the judgment is affirmed.