State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 17, 2015 106397
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JOSHUA R. HUGHES,
Appellant.
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Calendar Date: October 23, 2015
Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.
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John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (A. Michael Gebo of
counsel), for respondent.
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Devine, J.
Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered March 22, 2013, convicting
defendant upon his plea of guilty of the crime of burglary in the
second degree.
Following jury selection, defendant entered an Alford plea
to the sole count in an indictment charging burglary in the
second degree and waived his right to appeal. Consistent with
the plea agreement, County Court sentenced defendant, as a second
violent felony offender, to a prison term of seven years with
five years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's challenge to the waiver of appeal
is belied by the record, which reflects that County Court made
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clear its "separate and distinct" nature, explained the right
being waived and confirmed that defendant understood it and had
no questions, prior to signing the written appeal waiver in court
(People v Lopez, 6 NY3d 248, 256 [2006]; see People v Jackson,
129 AD3d 1342, 1342 [2015]). Contrary to his claims, County
Court sufficiently explained the appellate rights that survive
the waiver, and we find that defendant's waiver of appellate
rights was knowing, voluntary and intelligent (see id.; see also
People v Sanders, 25 NY3d 337, 340-341 [2015]).
While defendant's challenge to his Alford plea survives his
appeal waiver to the extent that it implicates the voluntariness
of his plea, it is unpreserved as he failed to make an
appropriate postallocution motion, and the narrow exception to
the preservation rule is inapplicable (see People v Heidgen, 22
NY3d 981, 981-982 [2013]; People v Fallen, 106 AD3d 1118, 1119
[2013], lv denied 22 NY3d 1156 [2014]; People v Ture, 94 AD3d
1163, 1164 [2012], lv denied 19 NY3d 968 [2012]).
Defendant alleges that he received the ineffective
assistance of counsel due to counsel's failure to conduct
appropriate discovery. To the extent that this argument survives
his appeal waiver by implicating the voluntariness of his plea,
however, it involves matters outside the record that must be
raised in a CPL article 440 motion (see People v Brown, 125 AD3d
1049, 1050 [2015]; People v Sylvan, 107 AD3d 1044, 1045-1046
[2013], lv denied 22 NY3d 1141 [2014]). Defendant's remaining
claims of ineffective assistance survive his appeal waiver to the
extent that they implicate the voluntariness of his guilty plea,
but are unpreserved given the absence of an appropriate
postallocution motion (see People v Jackson, 128 AD3d 1279, 1280
[2015], lv denied 26 NY3d 930 [2015]).1 Regardless, his
contentions are belied by the plea colloquy, in which defendant
confirmed that he was satisfied with counsel's services and had
adequate time to discuss the plea with him. Defendant's
1
While defendant argued at sentencing that his trial
counsel had been ineffective in a prior action, that did not
preserve the present claim of ineffective assistance in this
action.
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remaining claims similarly lack merit.
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court