State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 8, 2015 106192
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
KAREN R. SAYLOR,
Appellant.
________________________________
Calendar Date: September 9, 2015
Before: Peters, P.J., Lahtinen, Garry and Rose, JJ.
__________
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.
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Peters, P.J.
Appeal from a judgment of the Supreme Court (Teresi, J.),
rendered February 5, 2013 in Albany County, convicting defendant
upon her plea of guilty of the crime of attempted burglary in the
second degree.
Pursuant to a negotiated agreement that satisfied charges
stemming from six residential burglaries, defendant waived
indictment and entered a plea of guilty to attempted burglary in
the second degree as charged in a superior court information.
Defendant also waived her right to appeal and signed a written
appeal waiver in open court and was sentenced, in accordance with
the agreement, to a term of five years in prison to be followed
by three years of postrelease supervision. Defendant now
appeals.
-2- 106192
Defendant argues that her counsel was ineffective in that,
among other deficiencies, he failed to investigate the facts or
develop the record to establish defendant's level of intoxication
from drugs or alcohol at the time that she committed these
burglaries. Defendant did not preserve these claims by making a
postallocution motion (see People v Lord, 128 AD3d 1277, 1278
[2015]), and they are precluded by her unchallenged appeal waiver
"except insofar as [they] could be construed to have impacted
upon the voluntariness of [her] plea" (People v Glynn, 73 AD3d
1290, 1291 [2010]). Moreover, the claimed deficiencies concern
matters outside the record that are properly the subject of a CPL
article 440 motion (see People v Goldston, 126 AD3d 1175, 1178
[2015]). In any event, a review of counsel's performance
reflects that counsel negotiated a favorable plea agreement that
avoided consecutive sentences for six separate burglaries, and
"nothing in the record casts doubt on the apparent effectiveness
of counsel" (People v Wares, 124 AD3d 1079, 1080 [2015], lv
denied 25 NY3d 993 [2015]; see People v Eveland, 42 AD3d 755, 756
[2007], lv denied 9 NY3d 961 [2007]). Further, defendant has not
demonstrated "the absence of strategic or other legitimate
explanations" for counsel's decision to forgo an omnibus motion
seeking suppression of her confession to police in favor of the
advantageous plea agreement (People v Benevento, 91 NY2d 708, 712
[1998] [internal quotation marks and citation omitted]).1
Lahtinen, Garry and Rose, JJ., concur.
1
While counsel was obligated to file a notice of appeal
upon defendant's timely request, we granted defendant's pro se
motion pursuant to CPL 460.30 for an extension of time to take
this appeal and accepted her untimely notice of appeal.
Consequently, counsel's omission did not cause defendant to lose
the right to appeal (see People v Syville, 15 NY3d 391, 397
[2010]). Further, the proper recourse where counsel fails to
file a notice of appeal is an application for a writ of error
coram nobis (see id. at 400-401; People v Peccaro, 83 AD3d 1284,
1287 [2011], lv denied 17 NY3d 820 [2011]).
-3- 106192
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court