State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 106880 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

KEON BEVERLY, Also Known as

LIGHT,

Appellant.

________________________________

Calendar Date: April 25, 2016

Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

__________

Aaron A. Louridas, Delmar, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Jodi

A. Danzig of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of Albany County

(Breslin, J.), rendered January 11, 2011, convicting defendant

upon his plea of guilty of the crime of criminal sale of a

controlled substance in the third degree. 

As a result of an investigation into narcotics trafficking

by the Attorney General's Organized Crime Task Force, defendant

was charged in an indictment with conspiracy in the second degree

and two counts of criminal sale of a controlled substance in the

third degree. Pursuant to a negotiated agreement, defendant

pleaded guilty to one count of criminal sale of a controlled

substance in the third degree. He was sentenced as a second

felony offender, in accordance with the agreement, to a seven-
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year prison term followed by 11⁄2 years of postrelease supervision

and now appeals. 

We affirm. To begin, we find that defendant knowingly and

intelligently waived his right to appeal (see People v Lopez, 6

NY3d 248, 256 [2006]; see also People v Sanders, 25 NY3d 337,

340-341 [2015]). County Court thoroughly advised defendant of

the constitutional rights being forfeited upon a guilty plea (see

People v Tyrell, 22 NY3d 359, 365 [2013]), and then asked

whether, "separate and apart, independent of the trial rights you

give up by virtue of the plea, do you understand [that] the plea

bargain requires that you give up your right to appeal the

conviction as well as the sentence that I will impose here?" 

Defendant responded in the affirmative. This colloquy confirms

that defendant was duly apprised of the distinction between the

rights automatically forfeited upon a plea and the additional

requirement here of an appeal waiver. Given defendant's valid

appeal waiver, his challenge to the severity of the sentence is

foreclosed (see People v Lopez, 6 NY3d at 256; People v Clapper,

133 AD3d 1037, 1038 [2015], lv denied 27 NY3d 995 [2016]).

Defendant's claims that his guilty plea was not voluntary

and that counsel failed to provide effective assistance with

respect to the plea survive the appeal waiver, but were not

preserved for our review by an appropriate postallocution motion,

and no statements were made during the plea colloquy triggering

the narrow exception to the preservation requirement (see CPL

220.60 [3]; People v Lopez, 71 NY2d 662, 665-666 [1988]; People v

Pickett, 128 AD3d 1275, 1276 [2015], lv denied 26 NY3d 933

[2015]). Recognizing as much in his brief, defendant seeks to

have us vacate the plea in the interest of justice (see CPL

470.15 [6] [a]). We are not persuaded to do so.

The majority of defendant's claims concern matters that are

outside the record on appeal, such as what counsel discussed with

or provided to him, and are more properly raised in a CPL article

440 motion (see People v Taylor, 135 AD3d 1237, 1237 [2016]). 

Further, a review of the plea allocution demonstrates that

defendant was adequately informed of the plea terms and the

rights that he was foregoing, that he understood the consequences

of his plea and had sufficient time to discuss the proof against
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him and possible defenses with counsel. Defendant confirmed that

he was pleading guilty of his own free will and unequivocally

admitted the charged conduct. Moreover, defendant expressed

satisfaction with counsel, who negotiated a favorable plea deal

to a single sale count for which defendant received a sentence

well below the maximum possible consecutive sentences if he had

been convicted on each of the cocaine sales (see Penal Law

§§ 70.25 [3]; 70.70 [1] [b]; [3] [b] [i]). That defendant opted

to plead guilty, confirming that he had sold cocaine even though

the lab test results may not have been available to him, does not

compromise the viability of the plea. As such, were these issues

properly before us, we would find that they lack merit.

Lahtinen, J.P., Rose, Clark and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court