People v Apelles |
2020 NY Slip Op 04206 [185 AD3d 1298] |
July 23, 2020 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York,
Respondent, v Hans Apelles, Appellant. |
John B. Casey, Cohoes, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 22, 2017, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
Defendant was charged in a five-count indictment with burglary in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a controlled substance in the seventh degree and petit larceny. In satisfaction of that indictment, defendant agreed to plead guilty to burglary in the second degree with the understanding that he would be sentenced to a prison term of 10 years followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Following defendant's guilty plea, County Court sentenced defendant to a prison term of seven years followed by five years of postrelease supervision. This appeal ensued.
Defendant initially contends that County Court either exceeded its authority or abused its
discretion in not approving the People's initial plea offer, which included a state prison term that
could have been a minimum of 3
Defendant's further assertion—that his waiver of the right to appeal is invalid because
it was predicated upon the People's initial offer of a minimum term of imprisonment
(3
Finally, although defendant's challenge to the voluntariness of his plea survives the valid appeal waiver, this issue is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v Schmidt, 179 AD3d 1384, 1385 [2020]; People v Huntley, 177 AD3d 1032, 1033 [2019], lv denied 34 NY3d 1131 [2020]; People v Major, 176 AD3d 1257, 1258 [2019], lv denied 34 NY3d 1017 [2019]). Defendant's related assertion—that the plea allocution was factually insufficient—is precluded by the valid appeal waiver (see People v Sablan, 177 AD3d 1024, 1027 [2019], lv denied 34 NY3d 1132 [2020]; People v O'Neill, 172 AD3d 1778, 1779 [2019], lv denied 34 NY3d 953 [2019]). As defendant did not make any statements during the plea colloquy that negated an element of the crime, cast doubt upon his guilt or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement was not triggered (see People v Schmidt, 179 AD3d at 1385; People v Mackie, 177 AD3d 1192, 1193 [2019], lv denied 34 NY3d 1130 [2020]). In any event, defendant was not required to "acknowledge[ ] committing every element of the pleaded-to offense or provide[ ] a factual exposition for each element [there]of" (People v Seeber, 4 NY3d 780, 781 [2005] [citation omitted]), and "the fact that County Court apprised defendant of his maximum [potential] sentencing exposure did not amount to coercion" (People v Mitchell, 166 AD3d 1233, 1234 [2018], lv denied 33 NY3d 979 [2019]; see People v Mills, 146 AD3d 1173, 1174-1175 [2017]). Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Clark, Aarons and Colangelo, JJ., concur. Ordered that the judgment is affirmed.