Opinion
108572
11-15-2018
The PEOPLE of the State of New York, Respondent, v. James LETOHIC, Appellant.
Jack H. Weiner, New York City, for appellant. James R. Farrell, District Attorney, Monticello (Kristin L. Hackett of counsel), for respondent.
Jack H. Weiner, New York City, for appellant.
James R. Farrell, District Attorney, Monticello (Kristin L. Hackett of counsel), for respondent.
Before: McCarthy, J.P., Devine, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Defendant pleaded guilty to robbery in the first degree and burglary in the second degree in full satisfaction of a six-count indictment and waived the right to appeal. County Court thereafter sentenced defendant to an aggregate prison term of 11½ years, to be followed by five years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's challenge to the factual sufficiency of his plea allocution is precluded by his valid and unchallenged appeal waiver (see People v. Haverly, 161 A.D.3d 1483, 1484, 74 N.Y.S.3d 774 [2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [2018] ; People v. Robinson, 155 A.D.3d 1252, 1253, 64 N.Y.S.3d 740 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). Defendant's claim of ineffective assistance of counsel — insofar as it implicates the voluntariness of his plea — survives his appeal waiver but is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion (see People v. Duggins, 161 A.D.3d 1445, 1446, 77 N.Y.S.3d 765 [2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 863, 109 N.E.3d 1163 [2018] ; People v. Park, 159 A.D.3d 1132, 1134, 72 N.Y.S.3d 242 [2018], lv denied 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ). Moreover, defendant did not make any statements during the plea colloquy that would trigger the narrow exception to the preservation rule (see People v. Thomas, 153 A.D.3d 1445, 1446, 61 N.Y.S.3d 701 [2017], lv denied 30 N.Y.3d 1064, 71 N.Y.S.3d 14, 94 N.E.3d 496 [2017] ; People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [2016] ).
McCarthy, J.P., Devine, Rumsey and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.