Opinion
107715
12-28-2017
The PEOPLE of the State of New York, Respondent, v. Mark J. WELDEN, Appellant.
Brian M. Quinn, Albany, for appellant. Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: Egan Jr., J.P., Rose, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Rose, J.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered September 4, 2014, convicting defendant upon his plea of guilty of the crime of aggravated driving while intoxicated with a child.
In satisfaction of an eight-count indictment and other pending charges, defendant pleaded guilty to aggravated driving while intoxicated with a child and waived his right to appeal. He was sentenced, in accordance with the terms of the plea agreement, to a prison term of 1 to 3 years to be followed by a three-year conditional discharge that required him to install an interlock ignition device. Defendant appeals.
We affirm. Initially, we note that the waiver of the right to appeal was valid inasmuch as the record reflects that County Court distinguished the right to appeal as separate and distinct from the rights automatically forfeited by the guilty plea and defendant acknowledged that, after conferring with counsel, he understood and executed the written waiver of appeal. In view of the valid appeal waiver, defendant's challenge to the sufficiency of the plea allocution is foreclosed (see People v. Sullivan, 153 A.D.3d 1519, 1519, 62 N.Y.S.3d 552 [2017] ; People v. Mahon, 148 A.D.3d 1303, 1304, 48 N.Y.S.3d 842 [2017] ). Defendant's challenge to the voluntariness of his plea, although not precluded by the appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that defendant made an appropriate postallocution motion to withdraw his guilty plea. Nor did defendant make any statements during the plea colloquy to warrant the application of the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Hopper, 153 A.D.3d 1045, 1046, 61 N.Y.S.3d 176 [2017] ; People v. Williams, 150 A.D.3d 1549, 1550, 56 N.Y.S.3d 357 [2017] ). Were we to consider defendant's contention, we would find that the record establishes that his plea was knowingly, voluntarily and intelligently entered (see People v. Conceicao, 26 N.Y.3d 375, 383, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ).
ORDERED that the judgment is affirmed.
Egan Jr., J.P., Devine, Mulvey and Rumsey, JJ., concur.