Opinion
107878
12-28-2017
The PEOPLE of the State of New York, Respondent, v. Alex BROWN, Appellant.
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: McCarthy, J.P., Rose, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Rumsey, J.Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered August 11, 2015, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with robbery in the first degree. He pleaded guilty to this crime and waived his right to appeal, both orally and in writing. He was sentenced, in accordance with the terms of the plea agreement, to 10 years in prison and five years of postrelease supervision. He now appeals.
Initially, we note that defendant's waiver of the right to appeal is valid. County Court explained that the right to appeal was distinct from the trial-related rights forfeited by the guilty plea, and the record further reflects that defendant, after discussion with defense counsel, executed a written appeal waiver in open court and acknowledged that he understood it (see People v. Baxter, 154 A.D.3d 1010, 1011, 60 N.Y.S.3d 855 [2017] ; People v. Hess, 150 A.D.3d 1560, 1560, 55 N.Y.S.3d 780 [2017] ; People v. Pixley, 150 A.D.3d 1555, 1556–1557, 56 N.Y.S.3d 578 [2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ; People v. White, 145 A.D.3d 1324, 1324–1325, 44 N.Y.S.3d 247 [2016] ). The valid appeal waiver precludes defendant's challenge to the severity of his sentence (see People v. Hess, 150 A.D.3d at 1560, 55 N.Y.S.3d 780 ; People v. White, 145 A.D.3d at 1324–1325, 44 N.Y.S.3d 247 [2016] ).
Although defendant's valid waiver of the right to appeal does not preclude his claim that his guilty plea was not knowing, voluntary and intelligent, this claim has not been preserved for our review as the record does not reveal that he made an appropriate postallocution motion (see People v. Dubois, 150 A.D.3d 1562, 1563, 55 N.Y.S.3d 513 [2017] ; People v. Cooks, 150 A.D.3d 1323, 1324, 51 N.Y.S.3d 433 [2017] ). Moreover, the narrow exception to the preservation requirement is inapplicable as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Dubois, 150 A.D.3d at 1563, 55 N.Y.S.3d 513 ; People v. Cooks, 150 A.D.3d at 1324, 54 N.Y.S.3d 190 ).ORDERED that the judgment is affirmed.
McCarthy, J.P., Rose, Devine and Mulvey, JJ., concur.