                          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
                              -2-                106649

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
                              -3-                106649

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.
                              -4-                  106649

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
