People v. Lloyd ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 29, 2016 107154
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
GEOREL LLOYD,
Appellant.
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Calendar Date: September 8, 2016
Before: Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.
__________
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.
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Aarons, J.
Appeal from a judgment of the Supreme Court (Coccoma, J.),
rendered May 15, 2012 in Schenectady County, convicting defendant
upon his plea of guilty of the crime of murder in the second
degree.
Defendant pleaded guilty to murder in the second degree
after he fatally shot a young man. As part of the plea
agreement, he waived his right to appeal both orally and in
writing. He was subsequently sentenced, in accordance with the
terms of the plea agreement, to 20 years to life in prison.
Defendant now appeals.
Initially, we find that defendant's waiver of the right to
appeal was invalid inasmuch as he was not advised that this right
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was separate and distinct from the other rights that he was
forfeiting by pleading guilty (see People v Lopez, 6 NY3d 248,
256 [2006]; People v Gonzalez, 138 AD3d 1353, 1354 [2016]; People
v Lemon, 137 AD3d 1422, 1423 [2016], lv denied 27 NY3d 1135
[2016]). Although his appeal waiver, even if valid, would not
preclude his challenge to the voluntariness of his guilty plea,
this challenge has not been preserved for our review as the
record does not disclose that he made an appropriate
postallocution motion (see People v Larock, 139 AD3d 1241, 1242
[2016], lv denied ___ NY3d ___ [Aug. 10, 2016]; People v Daniels,
139 AD3d 1256, 1256 [2016]). Notably, the exception to the
preservation requirement is inapplicable here as defendant did
not make any statements during the plea proceedings that cast
doubt upon his guilt (see People v Lopez, 71 NY2d 662, 665-666
[1988]; People v Goldman, 139 AD3d 1111, 1112 [2016]; People v
Smith, 123 AD3d 1375, 1376 [2014], lv denied 26 NY3d 935 [2015]).
Defendant's further contention that he was denied the effective
assistance of counsel is, to the extent that it impacts the
voluntariness of his plea, similarly unpreserved in the absence
of an appropriate postallocution motion (see People v Perkins,
140 AD3d 1401, 1402-1403 [2016]; People v Beverly, 137 AD3d 1421,
1422 [2016], lv denied 27 NY3d 1128 [2016]). Finally, contrary
to defendant's claim, we do not find that the sentence is harsh
or excessive. Notwithstanding defendant's young age, difficult
childhood and lack of criminal record, the crime was both violent
and senseless in nature, and the sentence, which was less than
the statutorily authorized maximum (see Penal Law § 70.00 [2]
[a]; [3] [a] [i]), was agreed to by defendant as part of the plea
agreement. Thus, we find no extraordinary circumstances or any
abuse of discretion warranting a modification of the sentence in
the interest of justice (see People v Benson, 119 AD3d 1145,
1148-1149 [2014], lv denied 24 NY3d 1118 [2015]).
Garry, J.P., Egan Jr., Lynch and Rose, JJ., concur.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court