Opinion
105545.
2015-04-30
The PEOPLE of the State of New York, Respondent, v. Michael ALMEIDA, Appellant.
Peters, P.J., Lahtinen and Rose, JJ., concur.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, ROSE and DEVINE, JJ.
DEVINE, J.
Appeal from a judgment of the Supreme Court (Teresi, J.), rendered October 9, 2012 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.
Defendant waived indictment, pleaded guilty to a superior court information charging him with criminal contempt in the first degree and waived his right to appeal. He was thereafter sentenced, as a second felony offender, to a prison term of 1 1/2 to 3 years. Defendant appeals.
We affirm. Initially, we reject defendant's contention that his waiver of the right to appeal was invalid. Supreme Court distinguished the waiver of the right to appeal from the rights automatically forfeited upon a guilty plea. Defendant further acknowledged that he understood the rights he was waiving and had an opportunity to discuss the waiver with counsel, and he executed a written waiver in open court. Accordingly, we find that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence ( see People v. Smith, 123 A.D.3d 1375, 1375–1376, 999 N.Y.S.2d 276 [2014]; People v. Chavis, 117 A.D.3d 1193, 1193–1194, 987 N.Y.S.2d 111 [2014] ). In light of his valid appeal waiver, his assertion that his sentence is harsh and excessive is precluded ( see People v. Balbuena, 123 A.D.3d 1384, 1386, 999 N.Y.S.2d 600 [2014]; People v. White, 119 A.D.3d 1286, 1287, 990 N.Y.S.2d 726 [2014], lv. denied 24 N.Y.3d 1222, 4 N.Y.S.3d 610, 28 N.E.3d 46 [2015] ).
Turning to defendant's claims that his guilty plea was not knowing, intelligent and voluntary and that he was denied the effective assistance of counsel, these issues are unpreserved for our review, inasmuch as the record does not indicate that he made an appropriate postallocution motion ( see People v. Lewis, 118 A.D.3d 1125, 1125, 987 N.Y.S.2d 250 [2014], lv. denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014]; People v. Vandemark, 117 A.D.3d 1339, 1340, 986 N.Y.S.2d 684 [2014], lv. denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014] ). Moreover, with respect to the plea, defendant did not make any statements during the plea allocution that cast doubt upon his guilt or negated a material element of the crime so as to trigger the narrow exception to the preservation requirement ( see People v. Waite, 120 A.D.3d 1446, 1447, 994 N.Y.S.2d 201 [2014]; People v. Trombley, 115 A.D.3d 1114, 1114, 982 N.Y.S.2d 791 [2014], lv. denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014] ).
ORDERED that the judgment is affirmed.