State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 19, 2017 107585
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
MICHAEL DOGGETT,
Appellant.
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Calendar Date: December 13, 2016
Before: Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.
__________
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.
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Devine, J.
Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered April 29, 2015, convicting defendant upon
his plea of guilty of the crime of attempted criminal sale of a
controlled substance in the third degree.
In satisfaction of charged and uncharged accusations that
he was involved in the drug trade, defendant waived indictment
and pleaded guilty to a superior court information charging him
with attempted criminal sale of a controlled substance in the
third degree. Defendant further waived his right to appeal from
the conviction and sentence. He was sentenced, as a second
felony offender, to the promised prison term of four years to be
followed by two years of postrelease supervision. Defendant
appeals, and we now affirm.
-2- 107585
As an initial matter, defendant knowingly and intelligently
waived his right to appeal. County Court advised defendant
during the plea colloquy that, while he would ordinarily retain
the right to appeal to a higher court after pleading guilty, he
would be expected to give up that right so long as the sentence
imposed was the one contemplated by the plea agreement.
Defendant stated that he understood and agreed to waive his right
to appeal. He then conferred with defense counsel and executed a
detailed written waiver in open court that he acknowledged he
understood. Therefore, "in view of the whole colloquy,
particularly given this defendant's background, including his
extensive experience with the criminal justice system and
multiple prior guilty pleas that resulted in terms of"
incarceration, we find that his appeal waiver was valid (People v
Sanders, 25 NY3d 337, 342 [2015]; see People v Lopez, 6 NY3d 248,
256-257 [2006]; People v Toledo, 144 AD3d 1332, 1332-1333
[2016]).
Defendant next contends that the voluntariness of his
guilty plea was impaired by the deficient performance of defense
counsel but, while that challenge survives his appeal waiver, it
is unpreserved for our review due to his failure to make an
appropriate postallocution motion (see People v Williams, 27 NY3d
212, 214 [2016]; People v Toledo, 144 AD3d at 1333). In any
case, to the extent that his claim is not belied by the record,
it involves "matters that are outside the record on appeal, such
as what counsel advised him or investigated, [that are] more
properly raised in a motion to vacate pursuant to CPL article
440" (People v Taylor, 144 AD3d 1317, 1318 [2016]; see People v
Hughes, 134 AD3d 1301, 1302 [2015], lv denied 27 NY3d 966
[2016]).
Finally, defendant's valid appeal waiver precludes him from
arguing that the agreed-upon sentence was harsh and excessive
(see People v Lopez, 6 NY3d at 255; People v Renert, 143 AD3d
1016, 1017 [2016]).
Peters, P.J., Garry, Rose and Mulvey, JJ., concur.
-3- 107585
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court