State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 9, 2017 106763 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK, 

Respondent,

v MEMORANDUM AND ORDER

ANDRE DOLBERRY, 

Appellant.

________________________________

Calendar Date: January 20, 2017

Before: Garry, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

__________

Justin C. Brusgul, Voorheesville, for appellant, and

appellant pro se.

P. David Soares, District Attorney, Albany (Vincent Stark

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 attempted criminal

possession of a controlled substance in the third degree. 

Pursuant to a negotiated plea agreement, and in full

satisfaction of a three-count indictment, defendant pleaded

guilty to attempted criminal possession of a controlled substance

in the third degree and executed a written waiver of appeal in

open court. Consistent with the terms of the plea agreement,

Supreme Court imposed upon defendant, as a second felony

offender, a prison sentence of 51⁄2 years to be followed by three

years of postrelease supervision. Defendant appeals, and we
-2- 106763

affirm. 

Initially, contrary to defendant's contention, we find that

his oral and written waiver of appeal was knowing, voluntary and

intelligent (see People v Sanders, 25 NY3d 337, 339-341 [2015];

People v Lopez, 6 NY3d 248, 256 [2006]). Supreme Court

distinguished the right to appeal as "separate" and "independent"

from the rights automatically forfeited by a guilty plea, and

defendant acknowledged that he signed and understood the written

appeal waiver after reviewing it and conferring with counsel

regarding its contents (see People v Taylor, 144 AD3d 1317, 1318

[2016]; People v Toledo, 144 AD3d 1332, 1332-1333 [2016]). 

Defendant's challenge to the voluntariness of his plea survives

his appeal waiver, but his claim is unpreserved for our review in

the absence of an appropriate postallocution motion (see CPL

220.60 [2]; People v Williams, 27 NY3d 212, 214, 219-222 [2016];

People v Blair, 136 AD3d 1105, 1106 [2016], lvs denied 27 NY3d

1066, 1072 [2016]), and defendant did not make any statement

during the plea allocution that triggered the narrow exception to

the preservation requirement (see People v Lopez, 71 NY2d 662,

666-667 [1988]). 

To the extent that defendant's ineffective assistance of

counsel claims raised in his supplemental pro se brief implicate

the voluntariness of his plea, such claims survive his valid

appeal waiver; however, these claims are not properly before us

absent an appropriate postallocution motion (see People v Islam,

134 AD3d 1348, 1349 [2015]; People v Kormos, 126 AD3d 1039, 1040

[2015]). The balance of defendant's ineffective assistance of

counsel claims concern matters that are outside of the record on

appeal and are more appropriately addressed in a motion to vacate

pursuant to CPL article 440 (see People v Clark, 135 AD3d 1239,

1240 [2016], lv denied 27 NY3d 995 [2016]; People v Pickett, 128

AD3d 1275, 1276 [2015], lvs denied 26 NY3d 930, 933 [2015]). 

Defendant's contention raised in his supplemental pro se brief

challenging his status as a second felony offender is unpreserved

for our review. Defendant's remaining pro se arguments

concerning various pretrial matters, to the extent they are not

precluded by his waiver of the right to appeal, are also

unpreserved for our review or are barred by his guilty plea. 
-3- 106763

Egan Jr., Devine, Clark and Aarons, JJ., concur.

ORDERED that the judgment is affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court