People v. Green

Summary

The Appellate Division, Third Department, affirmed a judgment convicting Kevin Green upon his guilty plea to criminal possession of a weapon in the second degree and an order denying his CPL 440.10 motion to vacate the conviction. The court held that Green's unchallenged appeal waiver precluded review of his suppression, sentencing, and certain ineffective-assistance claims, and that his remaining claims were either unpreserved or improperly raised under CPL article 440 because they could have been presented on direct appeal.

Holdings

1. Because defendant did not challenge the validity of his appeal waiver, his claims concerning suppression of statements and physical evidence and the purported harshness of his sentence were precluded from appellate review.
2. An ineffective-assistance claim can survive an appeal waiver when it is tied to an assertion that the guilty plea was not knowing and voluntary, but defendant's claim here was precluded because the alleged attorney misconduct occurred before the plea proceeding and did not affect the plea's voluntariness.
3. Defendant's claim that counsel's conduct affected the voluntariness of his guilty plea was unpreserved because he did not make an appropriate postallocution motion, and the narrow exception to the preservation rule did not apply.
4. County Court properly denied defendant's CPL 440.10 motion because his claims, which were supported by no nonrecord evidence, could have been addressed on direct appeal; CPL article 440 was therefore an improper avenue for relief under CPL 440.10(2)(b).

Questions Presented

1. Whether defendant's challenges to the suppression of statements and physical evidence and to the severity of his sentence were precluded by his unchallenged appeal waiver.
2. Whether defendant's ineffective-assistance claim survived the appeal waiver as a challenge to the voluntariness of his guilty plea.
3. Whether defendant's ineffective-assistance claim was preserved for appellate review absent a postallocution motion.
4. Whether County Court properly denied defendant's CPL 440.10 motion alleging lack of jurisdiction, fraud or misrepresentation, and constitutional violations where defendant offered no nonrecord evidence and the claims could have been raised on direct appeal.

Disposition

affirmed