People v. Toback, 125 A.D.3d 1060 (N.Y. App. Div. 2015). · Go Syfert
People v. Toback, 125 A.D.3d 1060 (N.Y. App. Div. 2015). Cases Citing This Book View Copy Cite
17 citation events (17 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Gordon (nyappdiv, 2016-05-19)
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Gordon
N.Y. App. Div. · 2016 · confidence medium
Defendant’s valid waiver precludes his further argument that the sentence imposed was harsh and excessive (see People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015]; People v Hopper, 39 AD3d 1030, 1032 [2007]).
discussed Cited as authority (rule) People v. Case
N.Y. App. Div. · 2016 · confidence medium
Accordingly, we find that the appeal waiver was knowing, voluntary and intelligent (see People v Lopez, 6 NY3d 248, 256-257 [2006]; *1240 People v Jackson, 129 AD3d 1342, 1342 [2015]; People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015]), precluding her challenges to the sentence as harsh and excessive and to the adequacy of the plea allocution (see People v Lopez, 6 NY3d at 255-256 ; People v Atkinson, 124 AD3d 1149, 1150 [2015], lv denied 25 NY3d 949 [2015]; People v Rapp, 133 AD3d 979, 979 [2015]).
discussed Cited as authority (rule) People v. Goldman
N.Y. App. Div. · 2016 · confidence medium
While defendant’s challenge to the voluntariness of his plea survives his waiver of the right to appeal, it is nevertheless unpreserved for our review as the record does not reflect that defendant made a postallocution motion in this regard (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015]).
discussed Cited as authority (rule) People v. Ramos
N.Y. App. Div. · 2016 · confidence medium
While it was unnecessary for defendant to preserve this challenge in order to raise it here (see People v Vellon, 128 AD3d at 1275 ; People v Crump, 107 AD3d 1046, 1046 [2013], lv denied 21 NY3d 1014 [2013]), we find that Supreme Court’s careful instructions, defendant’s subsequent execution of a written appeal waiver after conferring with counsel and defendant’s own affirmative statements on the record all confirm that the waiver was entered knowingly, voluntarily and intelligently (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Kormos, 126 AD3d 1039, 1039-1040 [2015]; People …
discussed Cited as authority (rule) People v. Taylor
N.Y. App. Div. · 2016 · confidence medium
Finally, defendant’s challenge to the agreed-upon sentence as harsh and excessive is precluded by his valid waiver of appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015]).
discussed Cited as authority (rule) People v. Sawyer
N.Y. App. Div. · 2016 · confidence medium
Accordingly, the record amply demonstrates that defendant’s appeal waiver was knowing, voluntary and intelligent (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Jackson, 129 AD3d 1342, 1342 [2015]; People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015]).
discussed Cited as authority (rule) People v. Clapper
N.Y. App. Div. · 2015 · confidence medium
Moreover, they concern matters outside of the record on appeal that are more appropriately addressed in the context of a CPL article 440 motion (see People v Toback, 125 AD3d 1060, 1061-1062 [2015], lv denied 25 NY3d 993 [2015]).
discussed Cited as authority (rule) People v. Clapper
N.Y. App. Div. · 2015 · confidence medium
Moreover, defendant’s claims concern what counsel advised or promised him and the adequacy of his preparation and, as such, implicate matters outside the record before us, which are more appropriately considered in the context of a CPL article 440 motion (see People v Toback, 125 AD3d 1060, 1061-1062 [2015], lv denied 25 NY3d 993 [2015]; People v Guyette, 121 AD3d 1430, 1431 [2014]).
discussed Cited as authority (rule) People v. Garry
N.Y. App. Div. · 2015 · confidence medium
Further, to the extent that defendant contends that counsel made certain misrepresentations regarding the terms of the plea agreement, such claims involve matters outside the record and, therefore, are more properly the subject of a CPL article 440 motion (see People v Toback, 125 AD3d 1060, 1061-1062 [2015], lv denied 25 NY3d 993 [2015]; People v Stroman, 106 AD3d 1268, 1271 [2013], lv denied 21 NY3d 1046 [2013]).
discussed Cited as authority (rule) People v. Rapp
N.Y. App. Div. · 2015 · confidence medium
Initially, defendant’s unchallenged waiver of appeal precludes his contention that the grand jury minutes were deficient on the basis that the People may have failed to instruct the grand jury on the agency defense (see People v Hansen, 95 NY2d 227, 230 [2000]), as well as his claim that the agreed-upon sentence was harsh and excessive (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015]; People v Miner, 120 AD3d 1449, 1450 [2014]). *980 While portions of defendant’s claim that the indictment was jurisdictionally defective s…
discussed Cited as authority (rule) People v. Jackson
N.Y. App. Div. · 2015 · confidence medium
County Court carefully explained the nature of the right being waived, including that it was separate and distinct from the trial-related rights automatically forfeited upon a guilty plea, ascertained that defendant had discussed it with his attorney and had no questions about it, and defendant signed a written waiver of appeal in open court (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]; People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015]).
discussed Cited as authority (rule) People v. Vellon (2×)
N.Y. App. Div. · 2015 · confidence medium
In any event, the transcript of the plea colloquy establishes that defendant knowingly, voluntarily and intelligently pleaded guilty, after being provided with sufficient time to discuss the plea with his counsel and to consider its implications (see People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [Apr. 9, 2015]; People v Spellicy, 123 AD3d 1228, 1229-1230 [2014], lv denied 25 NY3d 992 [Apr. 23, 2015]).
discussed Cited as authority (rule) People v. Vellon (2×)
N.Y. App. Div. · 2015 · confidence medium
In any event, the transcript of the plea colloquy establishes that defendant knowingly, voluntarily and intelligently pleaded guilty, after being provided with sufficient time to discuss the plea with his counsel and to consider its implications (see People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [Apr. 9, 2015]; People v Spellicy, 123 AD3d 1228, 1229-1230 [2014], lv denied 25 NY3d 992 [Apr. 23, 2015]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Terrance Toback
Appellate Division of the Supreme Court of the State of New York.
Feb 11, 2015.
125 A.D.3d 1060
Lahtinen.
Cited by 13 opinions  |  Published
Lahtinen, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.). rendered June 18, 2013, convicting defendant upon his plea of guilty of the crime of criminal sexual act in the first degree.

[*1061] In satisfaction of a five-count indictment stemming from defendant’s sexual contact on two occasions with a girl under the age of 13 in 2012 when he was 22 years old, defendant entered a guilty plea to criminal sexual act in the first degree. Pursuant to the agreement, defendant waived his right to appeal and was sentenced to five years in prison with 15 years of post-release supervision. Defendant now appeals.

We affirm. Contrary to defendant’s claims, his guilty plea and appeal waiver were, in all respects, knowing, voluntary and intelligent (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Ford, 86 NY2d 397, 402-403 [1995]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]). Although his challenge to his plea as involuntary survives the appeal waiver, it was not preserved by an appropriate postallocution motion (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Waite, 120 AD3d 1446, 1447 [2014]). Moreover, a review of the plea colloquy reflects that he was fully apprised of the terms of the plea agreement, the rights he was relinquishing and the consequences of his plea, and made no statements calling into question the voluntariness of his plea or his guilt so as to implicate the exception to the preservation requirement (see People v Tyrell, 22 NY3d 359, 363-364 [2013]; People v Lopez, 71 NY2d 662, 665-666 [1988]). With regard to the appeal waiver, County Court explained its meaning and that it was separate from the trial-related rights automatically forfeited by defendant’s plea, and ascertained that he had reviewed it with counsel, understood it and had no questions about it, and defendant signed a written waiver in open court. This established the knowing, voluntary and intelligent nature of defendant’s appeal waiver (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d at 256; compare People v Bradshaw, 18 NY3d at 264-265; People v Fate, 117 AD3d 1327, 1328 [2014], lv denied 24 NY3d 1083 [2014]). Defendant’s valid appeal waiver precludes his arguments that the agreed-upon sentence was harsh and excessive or that the plea allocution was insufficient (see People v Lopez, 6 NY3d at 253, 255-256; People v Miner, 120 AD3d 1449, 1450 [2014]; People v Durham, 110 AD3d 1145, 1145 [2013]).

While defendant’s ineffective assistance of counsel claim survives his appeal waiver to the extent that they implicate the voluntariness of his plea (see People v Howard, 119 AD3d 1090, 1091 [2014], lv denied 24 NY3d 961 [2014]; People v Devino, 110 AD3d 1146, 1147 [2013]), defendant’s arguments are directed at what counsel advised him, which is not found in the record. Rather, it concerns matters outside the record[*1062] and should be raised in a postconviction motion under CPL article 440 (see People v Haffiz, 19 NY3d 883, 885 [2012]; People v Fate, 117 AD3d at 1329).

Garry, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.