Opinion
2014-12-24
The PEOPLE of the State of New York, Respondent, v. Robert MERRILL, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE, EGAN JR. and CLARK, JJ.
LAHTINEN, J.P.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 22, 2012, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
Defendant pleaded guilty to attempted burglary in the second degree and waived his right to appeal. County Court thereafter sentenced him to five years in prison, to be followed by three years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's contention, the plea colloquy and counseled written waiver executed by him demonstrate that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence ( see People v. Long, 117 A.D.3d 1326, 1326, 986 N.Y.S.2d 670 [2014], lv. denied24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014]; People v. Frasier, 105 A.D.3d 1079, 1080, 962 N.Y.S.2d 787 [2013], lv. denied22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ). His challenge to the voluntariness of his plea, which survives his appeal waiver, is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion ( see People v. Fate, 117 A.D.3d 1327, 1328, 986 N.Y.S.2d 672 [2014]; People v. Dozier, 115 A.D.3d 1001, 1001, 981 N.Y.S.2d 626 [2014] ). Further, the narrow exception to the preservation rule is inapplicable here, as defendant did not make any statements during the plea colloquy that were inconsistent with his guilt or that call into question the voluntariness of his plea ( see People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [2014]; People v. Watson, 115 A.D.3d 1016, 1017, 981 N.Y.S.2d 627 [2014], lv. denied24 N.Y.3d 965, 996 N.Y.S.2d 225, 20 N.E.3d 1005 [2014] ). Finally, defendant's contention that the imposed sentence is harsh and excessive is foreclosed by his valid waiver of the right to appeal ( see People v. Brown, 115 A.D.3d 1115, 1115, 982 N.Y.S.2d 205 [2014], lv. denied24 N.Y.3d 959, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014]; People v. Waldron, 115 A.D.3d 1116, 1117, 982 N.Y.S.2d 411 [2014], lv. denied23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 [2014] ).
ORDERED that the judgment is affirmed. McCARTHY, ROSE, EGAN JR. and CLARK, JJ., concur.