                           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.
________________________________


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
                              -2-                106967

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
                              -3-                  106967

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
