State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 19, 2015 106520 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

SCOTT A. CLAPPER,

Appellant.

________________________________

Calendar Date: October 16, 2015

Before: McCarthy, J.P., Rose, Lynch and Devine, JJ.

__________

Barrett D. Mack, Albany, for appellant, and appellant 

pro se.

James Sacket, District Attorney, Schoharie (Michael L.

Breen of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of Schoharie

County (Bartlett III, J.), rendered January 8, 2014, convicting

defendant upon his plea of guilty of the crimes of burglary in

the second degree and burglary in the third degree (three

counts).

Following a string of burglaries in 2012, defendant was

charged in a three-count indictment with burglary in the second

degree and other crimes, and in a superior court information with

four counts of burglary in the third degree. Pursuant to a

negotiated combined disposition, defendant entered a guilty plea

to burglary in the second degree and three counts of burglary in

the third degree, agreed to pay restitution and waived his right
-2- 106520 

to appeal. Consistent with the agreement, defendant was

sentenced for the burglary in the second degree conviction to 31⁄2

years in prison followed by five years of postrelease

supervision, and to concurrent prison terms of 2 to 6 years on

each of the burglary in the third degree convictions, the latter

sentences to be served consecutively to the former. Defendant

now appeals.1

Defendant's challenge to his sentence as harsh and

excessive is precluded by his knowing, voluntary and intelligent

waiver of appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; see

also People v Pacherille, 25 NY3d 1021, 1023-1024 [2015]; People

v Callahan, 80 NY2d 273, 280 [1992]). During the plea

allocution, County Court explained the nature of the right being

waived and made clear that it was separate from the trial-related

rights automatically forfeited upon a guilty plea, and

ascertained that defendant had discussed it with counsel and that

he understood its meaning (see People v Sanders, 25 NY3d 337,

340-341 [2015]; People v Bradshaw, 18 NY3d 257, 264-265 [2011];

People v Ramos, 7 NY3d 737, 738 [2006]; cf. People v Elmer, 19

NY3d 501, 510 [2012]). He also signed a written appeal waiver in

open court. Given defendant's valid appeal waiver, his challenge

to the negotiated sentence as harsh and excessive is foreclosed

(see People v Smalls, 128 AD3d 1281, 1282 [2015].

With regard to the claims raised in defendant's pro se

brief, his contention that he did not receive the effective

assistance of counsel is precluded by his appeal waiver except to

the extent that it impacts upon the voluntariness of his plea,

but it is unpreserved for our review as he failed to make an

1 Although the notice of appeal contains an inaccurate

description, in part, of the crimes to which defendant pleaded

guilty, we will overlook that error and treat the notice as valid

(see CPL 460.10 [6]; People v Saunders, 127 AD3d 1420, 1421 n 1

[2015], lv denied 26 NY3d 935 [2015]). Defendant also has an

appeal pending from a burglary conviction in Schenectady County

for which the sentence was imposed consecutively to the sentences

here (People v Clapper, ___ AD3d ___ [appeal No. 106519, decided

herewith]).
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appropriate postallocution motion (see People v Kormos, 126 AD3d

1039, 1040 [2015]). Moreover, defendant's claims concern what

counsel advised or promised him and the adequacy of his

preparation and, as such, implicate matters outside the record

before us, which are more appropriately considered in the context

of a CPL article 440 motion (see People v Toback, 125 AD3d 1060,

1061-1062 [2015], lv denied 25 NY3d 993 [2015]; People v Guyette,

121 AD3d 1430, 1431 [2014]).

Finally, defendant claims that defense counsel had a

conflict of interest based upon the Trial Judge's disclosure at

arraignment that he "play[s] golf with [defense counsel]

periodically." Defense counsel thereafter stated on the record

that "[defendant] indicates that that's acceptable" and no

objections were raised. Defendant reiterated that he had no

objection prior to entering his guilty plea. As such, any issue

regarding a potential conflict was waived (see People v Sanchez,

21 NY3d 216, 223 [2013]; People v Wright, 129 AD3d 1217, 1218

[2015]). Moreover, defendant has not demonstrated on this record

that any potential conflict of interest arose or affected

counsel's representation, or good cause for the appointment of

substitute counsel (see id.; People v Stevenson, 112 AD3d 989,

990 [2013], lv denied 22 NY3d 1159 [2014]).

McCarthy, J.P., Rose and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court