People v. Lewis

a young woman in May 2009. Consistent with the plea agreement that also contemplated a waiver of appeal, defendant was sentenced as a second felony offender to a prison term of 22 years to be followed by five years of postrelease supervision.^[1] Defendant’s subsequent pro se motion to vacate the judgment was denied in a written decision, without a hearing. Defendant now appeals from the judgment of conviction and, with permission, from the order denying his motion to vacate.

Initially, although an appeal waiver was recited as a term of the plea agreement, a review of the record does not establish that defendant’s appeal waiver was knowing, voluntary and intelligent (see People v Lopez, 6 NY3d 248 , 256 [2006]). There was no written appeal waiver and, when County Court elicited an oral waiver from defendant, it did not explain its meaning or ascertain that he had specifically discussed the waiver or the appellate process with counsel (see People v Proper, 133 AD3d 918 , 919 [2015]; People v Ashlaw, 126 AD3d 1236 , 1237 [2015]). As the court’s brief inquiry was insufficient “to ensure that defendant grasped the minimal information pertaining to the appeal waiver” (People v Bradshaw, 18 NY3d 257 , 260 [2011]; accord People v Anderson, 129 AD3d 1385 , 1385 [2015], lv denied 26 NY3d 965 [2015]), it is not enforceable. Nonetheless, defendant’s challenge to his guilty plea as involuntary was not raised in an appropriate postallocution motion to withdraw his plea (see CPL 220.60 [3]), so it is unpreserved for our review on his direct appeal (see People v Atkinson, 124 AD3d 1149 , 1150 [2015], lv denied 25 NY3d 949 [2015]). Defendant made no statements during the allocution that negated an essential element of the crime or cast doubt on his guilt so as to trigger the narrow exception to the preservation rule (see People v Lopez, 71 NY2d 662 , 665 [1988]; People v Burritt, 127 AD3d 1433 , 1434 [2015]). In any event, contrary to his claim, a factual recitation was not required and his unequivocal responses to the court’s detailed questions were sufficient to establish his guilt (see People v Rouse, 119 AD3d 1161 , 1163 [2014]).

With regard to defendant’s remaining claims, including those raised in his pro se briefs, we have reviewed them and find that none has merit. His challenge to the count of the indictment to which he pleaded guilty as duplicitous is not preserved

for our review (see People v Allen, 24 NY3d 441 , 449-450 [2014])^[2] and, in any event, it was waived by his guilty plea (see People v Jackson, 129 AD3d 1342 , 1342-1343 [2015]; People v Vega, 268 AD2d 686 , 687 [2000], lv denied 95 NY2d 839 [2000]). We have previously rejected the claim that Albany County did not have geographic jurisdiction over this assault (see People v White, 104 AD3d 1056 , 1057 [2013], lv denied 21 NY3d 1021 [2013]; CPL 20.40 [1]), and his argument regarding the sufficiency of the evidence presented to the grand jury is also precluded by his guilty plea (see People v Hansen, 95 NY2d 227 , 231-232 [2000]; People v Howard, 119 AD3d 1090 , 1091 [2014], lv denied 24 NY3d 961 [2014]).^[3] While defendant may challenge the agreed-upon sentence as harsh and excessive given the invalid appeal waiver (see People v Lopez, 6 NY3d at 256 ), it is devoid of merit in view of the unspeakable brutality of his crime (see People v White, 104 AD3d at 1057 ), committed while he was on parole for a manslaughter conviction.

We next turn to the denial of defendant’s motion to vacate the judgment of conviction, which is supported solely by defendant’s own affidavit. The motion was premised primarily upon the assertion that he was deprived of the effective assistance of counsel due to her failure to make pretrial motions and to move to dismiss the indictment on various grounds. However, the “[f]ailure to request a suppression hearing or to make a pretrial motion does not, by itself, constitute ineffective assistance, particularly in the absence of any basis upon which to conclude that a defendant had a colorable claim or that counsel’s actions were not premised upon a legitimate strategy” (People v Vonneida, 130 AD3d 1322 , 1322-1323 [2015], lv denied 26 NY3d 1093 [2015]; see People v Caban, 5 NY3d 143 , 152 [2005]; People v Rivera, 71 NY2d 705 , 709 [1988]; People v Cooper, 126 AD3d 1046 , 1047-1048 [2015], lv denied 26 NY3d 966 [2015]). Moreover, as part of the plea, defendant expressly waived the right to pretrial hearings and withdrew his pending motions, and his guilty plea prior to any suppression decisions forfeited those issues (see People v Fernandez, 67 NY2d 686 , 688 [1986]). As the record reflects that counsel filed appropri