Opinion
110462
05-27-2021
The PEOPLE of the State of New York, Respondent, v. Nakeem HAYNES, Appellant.
Lisa A. Burgess, Indian Lake, for appellant. Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Lisa A. Burgess, Indian Lake, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch and Colangelo, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from a judgment of the County Court of Franklin County (Champagne, J.), rendered May 11, 2018, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree and agreed to waive his right to appeal. He was sentenced, as a second felony offender, to 1½ to 3 years in prison. Defendant appeals.
Defendant contends that the waiver of the right to appeal is invalid and that his plea was not knowing, voluntary and intelligent. Regardless of the validity of the appeal waiver, defendant's challenge to the voluntariness of the plea survives any such waiver (see People v. Thomas, 190 A.D.3d 1157, 1159, 139 N.Y.S.3d 458 [2021] ; People v. Payson, 189 A.D.3d 1820, 1822, 137 N.Y.S.3d 580 [2020], lv denied 36 N.Y.3d 1099, 144 N.Y.S.3d 114, 167 N.E.3d 1249 [2021] ; People v. Smith, 188 A.D.3d 1357, 1357, 133 N.Y.S.3d 689 [2020] ). Defendant's challenge to the voluntariness of the plea, however, is unpreserved as the record does not reflect that defendant made an appropriate postallocution motion, and a review of the plea colloquy does not demonstrate that the narrow exception to the preservation requirement is applicable (see People v. Leach, 26 N.Y.3d 1154, 1154, 28 N.Y.S.3d 355, 48 N.E.3d 497 [2016] ; People v. Smith, 188 A.D.3d at 1357, 133 N.Y.S.3d 689 ; People v. Hummel–Parker, 171 A.D.3d 1397, 1398, 97 N.Y.S.3d 539 [2019] ; People v. Peryea, 169 A.D.3d 1120, 1121, 93 N.Y.S.3d 456 [2019], lv denied 33 N.Y.3d 980, 101 N.Y.S.3d 242, 124 N.E.3d 731 [2019] ). As such, the judgment of conviction will not be disturbed.
Garry, P.J., Lynch and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.