State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 106967 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

SHAKEE PERKINS,

Appellant.

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Calendar Date: April 26, 2016

Before: Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.

__________

Carolyn B. George, Albany, for appellant.

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

Wetmore of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the County Court of Albany County

(Lynch, J.), rendered January 24, 2014, convicting defendant upon

his plea of guilty of the crime of burglary in the second degree.

In May 2013, defendant was indicted and charged with

burglary in the second degree and criminal mischief in the second

degree. The charges stemmed from a November 2012 incident

wherein defendant allegedly entered a residence in the City of

Albany and caused extensive damage thereto. Thereafter, in June

2013, defendant was charged in a six-count indictment with

various drug-related offenses – the most serious of which was

criminal sale of a controlled substance in the third degree. In

September 2013, defendant pleaded guilty to a single count of

burglary in the second degree – in full satisfaction of both
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pending indictments – and waived his right to appeal in exchange

for the agreed-upon sentence of nine years in prison followed by

five years of postrelease supervision. At defendant's request,

sentencing was adjourned until after the holidays and was set

down for December 30, 2013. It appears that sentencing was

further adjourned until January 21, 2014, at which time defendant

failed to appear, and County Court issued a bench warrant for his

arrest. Defendant was apprehended and appeared in court three

days later for sentencing. Despite defendant's failure to appear

for sentencing on the appointed date, the People did not seek an

enhanced sentence and, based upon the People's recommendation,

County Court agreed to adhere to the terms of the plea agreement. 

Accordingly, County Court sentenced defendant to a prison term of

nine years followed by five years of postrelease supervision. 

Defendant now appeals.

Defendant readily concedes that, by pleading guilty to

burglary in the second degree (a class C violent felony offense)

(see Penal Law § 70.02 [1] [b]), he was not eligible for

participation in the shock incarceration program (see Correction

Law § 865 [1]). Defendant maintains, however, that he was denied

the effective assistance of counsel because his attorney allowed

him to plead guilty to an offense that rendered him ineligible

for participation in that program. In other words, counsel was

ineffective – defendant asserts – because he did not negotiate a

plea bargain that would have permitted defendant to plead guilty

to one of the drug-related offenses charged in the June 2013

indictment. Assuming that this aspect of defendant's ineffective

assistance of counsel claim impacts upon the voluntariness of his

plea, such claim survives defendant's unchallenged waiver of the

right to appeal but is unpreserved for our review in the absence

of an appropriate postallocution motion (see People v Griffin,

134 AD3d 1228, 1230 [2015]; People v Smith, 123 AD3d 1375, 1376

[2014], lv denied 26 NY3d 935 [2015]). Further, the narrow

exception to the preservation rule was not triggered here, "as

defendant did not make any statements during the plea allocution

that negated an essential element of the crime or otherwise cast

doubt upon his guilt" (People v Smith, 119 AD3d 1088, 1089

[2014], lvs denied 24 NY3d 1084, 1089 [2014]; see People v White,

104 AD3d 1056, 1056 [2013], lvs denied 21 NY3d 1018, 1021

[2013]). Defendant's related ineffective assistance of counsel
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claim – that "counsel caused him to miss out on a more favorable

. . . earlier plea offer" – is premised upon matters outside the

record and, as such, is more properly the subject of a CPL

article 440 motion (see generally People v Toye, 107 AD3d 1149,

1152 [2013], lv denied 22 NY3d 1091 [2014]).

Defendant's remaining arguments do not warrant extended

discussion. The People's alleged failure to disclose a certain

pretrial statement that defendant may have made to the

authorities is based entirely upon speculation. In any event, we

note that "[t]he forfeiture [of rights] occasioned by a guilty

plea extends to a variety of claims, including those premised

upon a failure to provide CPL 710.30 notice" (People v Sirico,

135 AD3d 19, 24 [2015]). Finally, review of defendant's claim

that the agreed-upon sentence imposed is harsh and excessive is

precluded by his unchallenged appeal waiver (see People v Rapp,

133 AD3d 979, 979 [2015]). Accordingly, the judgment of

conviction is affirmed.

Peters, P.J., Lahtinen, Devine and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court