Nevertheless, we are unpersuaded by defendant's contention that, given his mental health issues and disadvantaged childhood, the agreed-upon sentence is harsh or excessive. A review of the record does not reflect any abuse of discretion or extraordinary circumstances warranting a modification of the sentence in the interest of justice (seePeople v. Fisher, 181 A.D.3d 1051, 1053, 120 N.Y.S.3d 656 [2020] ; People v. Mitchell, 166 A.D.3d 1233, 1234, 86 N.Y.S.3d 681 [2018], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 222, 124 N.E.3d 711 [2019] ). Defendant also contends that his guilty plea was not knowing, voluntary and intelligent because County Court did not advise him of his right to a jury trial or his privilege against self-incrimination.
Given the invalidity of the appeal waiver, defendant's contention that the sentence is harsh and excessive is not foreclosed. Nonetheless, we discern no abuse of discretion or extraordinary circumstances warranting a reduction of the agreed-upon sentence in the interest of justice (seePeople v. Cook, 171 A.D.3d 1361, 1361–1362, 96 N.Y.S.3d 921 [2019] ; People v. Mitchell, 166 A.D.3d 1233, 1234, 86 N.Y.S.3d 681 [2018], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 222, 124 N.E.3d 711 [2019] ). Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.
Defendant appeals. Initially, as defendant claims and the People concede, defendant's waiver of appeal is invalid (seePeople v. Mitchell, 166 A.D.3d 1233, 1233–1234, 86 N.Y.S.3d 681 [2018], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 222, 124 N.E.3d 711 [2019] ; People v. Warren, 160 A.D.3d 1286, 1287, 75 N.Y.S.3d 362 [2018] ; People v. Evans, 159 A.D.3d 1226, 1227, 72 N.Y.S.3d 650 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ). Next, defendant contends that his guilty plea was not knowing, voluntary and intelligent because Supreme Court (Reilly Jr., J.) did not sufficiently advise him of the constitutional trial-related rights that he was forfeiting by pleading guilty (seeBoykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ), and that his counsel was ineffective for failing to preserve this issue. Both of these claims are unpreserved for our review, as the record does not reflect that defendant made an appropriate postallocution motion (seePeople v. Edwards, 181 A.D.3d 1054, 1055, 122 N.Y.S.3d 133 [2020], lvs denied 35 N.Y.3d 1026, 1029, 126 N.Y.S.3d 33, 34, 149 N.E.3d 871, 872 [2020]; People v. Alexander, 174 A.D.3d 1068, 1069, 104 N.Y.S.3d 765 [2019], lv denied 34 N.Y.3d 949, 110
Initially, we agree with defendant that the waiver of the right to appeal is invalid. A review of County Court's brief colloquy with regard to the appeal waiver reflects that the court did not explain to defendant the separate and distinct nature of the appeal waiver or ensure "that defendant appreciated the right that he was relinquishing and understood the consequences thereof" ( People v. Miller, 166 A.D.3d 1385, 1386, 88 N.Y.S.3d 696 [2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 1207, 122 N.E.3d 1107 [2019] ; accordPeople v. Mitchell, 166 A.D.3d 1233, 1233, 86 N.Y.S.3d 681 [2018], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 222, 124 N.E.3d 711 [2019] ). Although defendant executed a written waiver in open court, the court did not ascertain from defendant that he had conferred with counsel, had read the written appeal waiver or that he understood the consequences thereof (seePeople v. Pittman, 166 A.D.3d 1243, 1244, 86 N.Y.S.3d 347 [2018], lv denied 32 N.Y.3d 1176, 97 N.Y.S.3d 601, 121 N.E.3d 228 [2019] ; People v. Mallard, 163 A.D.3d 1350, 1351, 82 N.Y.S.3d 653 [2018], lv denied 32 N.Y.3d 1066, 113 N.E.3d 954 [2018] ).
not make any statements that negated his guilt or called into question the voluntariness of his guilty plea (seePeople v. Lopez , 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Morton , 173 A.D.3d at 1465–1466, 103 N.Y.S.3d 673 ). Defendant's argument that he was not adequately advised of his Boykin trial rights during the plea allocution (seeBoykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ) is subject to preservation rules (seePeople v. Conceicao , 26 N.Y.3d at 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Small , 166 A.D.3d 1237, 1238, 86 N.Y.S.3d 677 [2018] ) and, were we to address it despite the lack of preservation, we would find that he was adequately advised of and validly waived those rights (seePeople v. Conceicao , 26 N.Y.3d at 383 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Mitchell , 166 A.D.3d 1233, 1234, 86 N.Y.S.3d 681 [2018], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 222, 124 N.E.3d 711 [2019] ). To the extent that defendant's claims of ineffective assistance of counsel impact upon the voluntariness of his plea, including the arguments raised in his pro se brief, they survive the appeal waiver but are similarly unpreserved due to the lack of a postallocution motion (seePeople v. Allevato , 170 A.D.3d 1264, 1265, 93 N.Y.S.3d 753 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019] ).