State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 19, 2016 106341 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

NICOLE L. CASE,

Appellant.

________________________________

Calendar Date: April 20, 2016

Before: Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

__________

Eric C. Morigerato, Albany, for appellant.

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

Wetmore of counsel), for respondent.

__________

Mulvey, J.

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

rendered August 20, 2013 in Albany County, convicting defendant

upon her plea of guilty of the crime of burglary in the second

degree.

Defendant pleaded guilty to burglary in the second degree

pursuant to a plea agreement that satisfied a five-count

indictment and capped her prison sentence at nine years to be

followed by four years of postrelease supervision. The charges

stemmed from defendant's involvement with others in a violent

home invasion in which items of personal property were stolen. 

Consistent with the agreement, Supreme Court imposed a prison

term of eight years with four years of postrelease supervision. 

Defendant now appeals.
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We affirm. Initially, defendant argues that she did not

knowingly waive her right to appeal. The record discloses that

an appeal waiver was recited as a term of the agreement, and

Supreme Court explained during the plea allocution that it was

separate and distinct from the trial rights forfeited by the

guilty plea, and ascertained that defendant understood and

willingly waived her appellate rights. Defendant, who conferred

with counsel during the oral appeal waiver, also signed a written

appeal waiver in court after indicating that she had discussed it

"fully" with counsel and understood it. Accordingly, we find

that the appeal waiver was knowing, voluntary and intelligent

(see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v

Jackson, 129 AD3d 1342, 1342 [2015]; People v Toback, 125 AD3d

1060, 1061 [2015], lv denied 25 NY3d 993 [2015]), precluding her

challenges to the sentence as harsh and excessive and to the

adequacy of the plea allocution (see People v Lopez, 6 NY3d at

255-256 [2006]; People v Atkinson, 124 AD3d 1149, 1150 [2015], lv

denied 25 NY3d 949 [2015]; People v Rapp, 133 AD3d 979, 979

[2015]).

While defendant's challenge to her guilty plea as

involuntary survives her appeal waiver, it was not preserved by

an appropriate postallocution motion to withdraw her guilty plea

(see CPL 220.60 [3]; People v O'Keefe, 133 AD3d 1034, 1035

[2015], lv denied 26 NY3d 1148 [2016]), and she made no

statements during the allocution that negated an essential

element of the crime or cast doubt on her guilt so as to trigger

the narrow exception to the preservation rule (see People v

Lopez, 71 NY2d 662, 665 [1988]; People v Burritt, 127 AD3d 1433,

1434 [2015]). Contrary to her claims on appeal that she had

wanted to withdraw her guilty plea, the record reflects that

after she made statements at sentencing minimizing her

involvement and suggesting that she wanted to cooperate against

her accomplices, she was afforded an adjournment to permit her to

move to withdraw her plea and thereafter expressly declined to so

move (see People v Martin, 125 AD3d 1054, 1054 [2015], lv denied

26 NY3d 932 [2015]). In any event, her unequivocal responses to

Supreme Court's detailed questions were sufficient to establish

her guilt and the record establishes that her plea was knowing,

voluntary and intelligent (see People v Tyrell, 22 NY3d 359, 365

[2013]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v
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Rouse, 119 AD3d 1161, 1163 [2014]).

Also lacking in merit is defendant's claim that she was

deprived of meaningful representation (see People v Benevento, 91

NY2d 708, 713-714 [1998]). "In 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" (People v

Beekman, 134 AD3d 1355, 1356-1357 [2015] [internal quotation

marks and citation omitted]). Defendant expressed satisfaction

with the representation provided by defense counsel, who secured

a favorable plea deal that avoided a substantially longer

potential sentence, and she has failed to "demonstrate the

absence of strategic or other legitimate explanations for

counsel's alleged failure[s]" (People v Wragg, 26 NY3d 403, 409

[2015]). Finally, her assertions regarding what counsel advised

her or investigated are outside the record on appeal and are more

properly raised in a motion to vacate the judgment pursuant to

CPL article 440 (see People v Haffiz, 19 NY3d 883, 885 [2012];

People v Miner, 120 AD3d 1449, 1450 [2014]). Her remaining

claims lack merit.

Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court