Opinion
05-25-2017
The PEOPLE of the State of New York, Respondent, v. Stephen WALLACE, Also Known as Spaz, Appellant.
Elena Jaffe Tastensen, Saratoga Springs, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., ROSE, DEVINE and MULVEY, JJ.
McCARTHY, J.P.Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered September 19, 2014, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to the reduced charge of attempted assault in the first degree and waived his right to appeal. He was sentenced, as a second felony offender, in accordance with the plea agreement to an eight-year prison term, followed by five years of postrelease supervision. Defendant now appeals.
Contrary to defendant's contention, a review of the record establishes that defendant knowingly, voluntarily and intelligently waived his right to appeal. Defendant informed County Court that he was aware of the rights he was giving up by waiving his right to appeal and was doing so voluntarily, and he specifically acknowledged that he had previous experience executing appeal waivers. Furthermore, defendant affirmed that he had discussed with his attorney and voluntarily signed a written waiver, which clarified that it was separate from the rights forfeited by his guilty plea (see People v. Rhodes, 143 A.D.3d 1011, 1011, 38 N.Y.S.3d 444 [2016] ; People v. Van Clief, 122 A.D.3d 1062, 1062, 996 N.Y.S.2d 396 [2014], lv. denied 24 N.Y.3d 1221, 4 N.Y.S.3d 610, 28 N.E.3d 46 [2015] ). Although defendant's valid appeal waiver does not preclude his challenge to the voluntariness of the plea, such claim is unpreserved because the record does not reflect that defendant made any appropriate postallucation motion (see People v. Constantopoulos, 141 A.D.3d 942, 943, 34 N.Y.S.3d 912 [2016], lv. denied 28 N.Y.3d 1027, 45 N.Y.S.3d 378, 379, 68 N.E.3d 107, 108 [2016] ; People v. McCray, 139 A.D.3d 1235, 1235–1236, 31 N.Y.S.3d 659 [2016] ). Finally, any challenge to the agreed-upon sentence as harsh and excessive is precluded by the valid appeal waiver (see People v. McCall, 146 A.D.3d 1156, 1157, 44 N.Y.S.3d 795 [2017] ).
ORDERED that the judgment is affirmed.
EGAN JR., ROSE, DEVINE and MULVEY, JJ., concur.