                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   106903
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

NORMAN LEWIS, Also Known as
   REESE,
                    Appellant.
________________________________


Calendar Date:   September 9, 2016

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

                             __________


     Donnial K. Hinds, Albany, for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Hannah Sith Long of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered March 14, 2014, convicting defendant upon
his plea of guilty of the crime of criminal possession of a
controlled substance in the third degree.

      In January 2013, defendant was charged in a sealed, multi-
count indictment with conspiracy in the second degree and 13
felony drug offenses. Defendant appeared at arraignment with
retained counsel and, following a successful bail application,
the matter was adjourned – apparently for the purpose of allowing
defendant to consider an anticipated plea offer. When the
parties reappeared before County Court on March 29, 2013, counsel
for defendant asked to be relieved. County Court denied
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counsel's application, finding evidence of nothing more than a
"routine disagreement[]" between an attorney and his client, but
adjourned the matter until April 12, 2013 to afford defendant an
opportunity to retain new counsel should he so choose.

      Defendant and retained counsel returned to County Court on
the appointed date, at which time defendant indicated that he and
counsel had resolved their differences and that he was prepared
to accept the People's offer. County Court then outlined the
terms of the plea agreement, wherein defendant would – in full
satisfaction of the underlying indictment – plead guilty to a
single count of criminal possession of a controlled substance in
the third degree, waive his right to appeal and agree to
cooperate with the Attorney General in the prosecution of his
codefendants. In exchange, defendant would be sentenced, as a
second felony offender, to eight years in prison followed by
three years of postrelease supervision. Following an extensive
and detailed colloquy, during the course of which County Court,
among other things, outlined the ramifications of the guilty
plea, explained the separate and distinct nature of the appellate
rights that defendant was waiving and ensured that defendant had
read and understood the written waiver of the right to appeal
that was executed in open court, defendant – having assured the
court that he was satisfied with counsel's representation, had
been afforded sufficient time to consider the plea and was
accepting the plea of his own free will – pleaded guilty to
criminal possession of a controlled substance in the third
degree, and the matter was adjourned for sentencing.

      When defendant returned to court for sentencing on January
6, 2014, he again expressed dissatisfaction with retained
counsel's services and contended that he had been coerced into
accepting the plea agreement. In response, County Court revoked
defendant's bail and adjourned the matter so that new counsel
could be assigned to represent defendant – specifically, to
consider whether there was any basis upon which to pursue a
motion to withdraw defendant's plea. Defendant and assigned
counsel appeared for sentencing on March 14, 2014, at which time
assigned counsel advised that, although defendant did not wish to
move to withdraw his plea, he also did not want to be sentenced –
citing, among other things, retained counsel's alleged failure to
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provide him with certain discovery materials. County Court
thereafter sentenced defendant in accordance with the terms of
plea agreement. Defendant now appeals, primarily contending that
he was denied the effective assistance of counsel.

      Preliminarily, to the extent that defendant's brief may be
read as contending that his waiver of the right to appeal was
involuntary, we disagree. As noted previously, County Court
explained the nature of the appellate rights encompassed by the
waiver and confirmed that defendant had read and understood the
written waiver of appeal that he executed in open court (see
People v Mann, 140 AD3d 1532, 1533 [2016]; People v McCray, 139
AD3d 1235, 1236 [2016]). Accordingly, we are satisfied that
defendant's waiver of appeal was knowing, intelligent and
voluntary (see People v Hughes, 134 AD3d 1301, 1301 [2015], lv
denied 27 NY3d 966 [2016]; People v Kormos, 126 AD3d 1039, 1039-
1040 [2015]).

      As for defendant's claim that he was denied the effective
assistance of counsel, many of the issues of which defendant now
complains – including retained counsel's asserted failure to
properly investigate the charges against defendant, interview
witnesses and/or pursue various defenses – involve matters
outside of the record and, hence, are more properly the subject
of a CPL article 440 motion (see People v Griffin, 134 AD3d 1228,
1230 [2015], lv denied 27 NY3d 1132 [2016]). To the extent that
the balance of defendant's ineffective assistance of counsel
claim – including his assertion that his plea was coerced (see
People v Conley, 135 AD3d 1238, 1238-1239 [2016]; People v
Hudson, 130 AD3d 1320, 1320 [2015]) – impacts upon the
voluntariness of his plea, such claim survives his valid appeal
waiver but is unpreserved for our review in the absence of an
appropriate postallocution motion (see People v Tamah, 133 AD3d
923, 924 [2015]; People v Beblowski, 127 AD3d 1505, 1505 [2015],
lv denied 26 NY3d 926 [2015]). Further, our review of the record
confirms that "defendant did not make any statements during the
plea colloquy that would trigger the narrow exception to the
preservation rule" (People v Tamah, 133 AD3d at 924; see People v
Perkins, 140 AD3d 1401, 1403 [2016]). Finally, defendant's
challenge to the perceived severity of the agreed-upon sentence
imposed is precluded by his valid appeal waiver (see People v
                              -4-                  106903

Perkins, 140 AD3d at 1403; People v Dunkelberger, 139 AD3d 1255,
1256 [2016]).

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



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
