State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 17, 2015 106397 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JOSHUA R. HUGHES,

Appellant.

________________________________

Calendar Date: October 23, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

__________

John A. Cirando, Syracuse, for appellant.

Mary E. Rain, District Attorney, Canton (A. Michael Gebo of

counsel), for respondent.

__________

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