State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 106649 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

LA-MEIK TAYLOR, Also Known as 

COOK,

Appellant.

________________________________

Calendar Date: October 13, 2016

Before: Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

__________

Erin C. Morigerato, Albany, for appellant, and appellant

pro se.

P. David Soares, District Attorney, Albany (Michael C.

Wetmore of counsel), for respondent.

__________

Garry, J.P.

Appeal from a judgment of the Supreme Court (Breslin, J.),

rendered March 6, 2014 in Albany County, convicting defendant

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

weapon in the second degree. 

After defendant allegedly fired a handgun several times

striking a person who was fleeing from him, he was charged in a

seven-count indictment with attempted murder in the second

degree, criminal possession of a weapon in the second degree and

other crimes. In satisfaction thereof, defendant pleaded guilty

to criminal possession of a weapon in the second degree pursuant

to a plea agreement that included a waiver of appeal. In
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exchange, the People promised to recommend a prison sentence of

not more than 12 years with five years of postrelease

supervision. Consistent with the agreement, Supreme Court

sentenced defendant as a second felony offender to a prison term

of 12 years with five years of postrelease supervision, and he

now appeals.

We affirm. Defendant's combined oral and written waiver of

appeal was valid. Supreme Court explained that it was separate

from the other rights that he was relinquishing by pleading

guilty and ascertained that defendant understood it (see People v

Lopez, 6 NY3d 248, 256 [2006]; People v Macon, 142 AD3d 739, 753

[2016]). After reviewing the waiver with counsel, defendant

executed a written appeal waiver in open court; this document

explained that he ordinarily retained the right to appeal and

that he was relinquishing that right. The record thus

establishes a knowing, voluntary and intelligent waiver (see

People v Ramos, 7 NY3d 737, 738 [2006]; People v Woods, 141 AD3d

954, 955 [2016]). Defendant's appeal waiver forecloses his

challenge to the sentence as harsh and excessive (see People v

Lopez, 6 NY3d at 255-256). Defendant's challenge to the

voluntariness of his plea survives his appeal waiver, but is

unpreserved for our review in the absence of an appropriate

postallocution motion (see CPL 220.60 [2]; People v Blair, 136

AD3d 1105, 1006 [2016], lvs denied 27 NY3d 1066, 1072 [2016]). 

Further, defendant did not make any statement during the plea

allocution to trigger the narrow exception to the preservation

requirement (see People v Lopez, 71 NY2d 662, 665 [1988]). 

While defendant's claim of ineffective assistance of

counsel survives his waiver of appeal as it implicates the

voluntariness of his plea, it was likewise not preserved for our

review (see People v Macon, 142 AD3d at 753). To the extent that

the claim concerns matters that are outside the record on appeal,

such as what counsel advised him or investigated, it is more

properly raised in a motion to vacate pursuant to CPL article

440, where a record may be made (see People v Hughes, 134 AD3d

1301, 1302 [2015], lv denied 27 NY3d 966 [2016]). Moreover,

during the plea colloquy, defendant expressed satisfaction with

counsel's representation, and his challenge to counsel's preplea

motion practice was forfeited by his guilty plea (see People v
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Hansen, 95 NY2d 227, 230-231 [2000]; People v Taylor, 65 NY2d 1,

5 [1985]; People v Jenkins, 130 AD3d 1091, 1092 [2015]).1 In any

event, "[i]n the context of a guilty plea, a defendant has been

afforded meaningful representation when he or she receives an

advantageous plea and nothing in the record casts doubt upon the

apparent effectiveness of counsel" and, were we to address this

claim, we would find that defendant received meaningful

representation (People v Case, 139 AD3d 1239, 1240 [2016]

[internal quotation marks and citation omitted], lv denied 28

NY3d 928 [2016]).

Defendant claims in his pro se brief that the People

committed a Brady violation by failing to disclose statements

made by the victim and an eyewitness (see Brady v Maryland, 373

US 83 [1963]) and relatedly argues that this rendered his plea

involuntary. These claims are not preserved for our review (see

People v Whitted, 117 AD3d 1179, 1182 [2014], lv denied 23 NY3d

1026 [2014]; People v Hayes, 71 AD3d 1187, 1189 [2010], lv denied

15 NY3d 852 [2010]).2 Similarly, his argument that he was not

properly adjudicated as a second felony offender is unpreserved. 

Defendant admitted the 2009 predicate felony at sentencing and

did not contest predicate sentencing, and defense counsel

indicated on the record that he had reviewed the predicate

1 Defendant argues that defense counsel was ineffective

for failing to move to sever his trial from that of his

accomplice, who pleaded guilty at the same time. However, we

note that defendant was not jointly indicted with his accomplice

(see CPL 200.40 [1]), and the record does not reflect that the

People ever moved to consolidate the charges for a single trial

(see CPL 200.40 [2]). As the separate indictments were never

joined, counsel was not remiss in failing to move for severance.

2 In response to defendant's general Brady request for

witness statements, the People represented that all exculpatory

material had been disclosed to the defense. The claim now argued

was not specifically raised in defendant's omnibus motion or

otherwise on the record. As such, it is not clear on the record

before us whether such statements exist and whether they were

disclosed to the defense.
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statement with defendant and that there were no legal challenges

to it (see People v Murdie, 134 AD3d 1353, 1354 [2015]; People v

Johnson, 133 AD3d 1028, 1029 [2015]). Defendant's remaining

contentions have been considered and found to lack merit.

Egan Jr., Rose, Devine and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court