Opinion
107524.
05-19-2016
The PEOPLE of the State of New York, Respondent, v. Timothy E. MORRILL, Appellant.
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant. Mary E. Rain, District Attorney, Canton (Marquetta Christy of counsel), for respondent.
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
Mary E. Rain, District Attorney, Canton (Marquetta Christy of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, CLARK and MULVEY, JJ.
Opinion
LAHTINEN, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered January 23, 2015, convicting defendant upon his plea of guilty of the crime of unlawful manufacture of methamphetamine in the third degree.
Defendant waived indictment and pleaded guilty to a superior court information charging him with unlawful manufacture of methamphetamine in the third degree. He also waived his right to appeal, both orally and in writing. Under the terms of the plea agreement, he was to be sentenced to two years in prison, to be followed by one year of postrelease supervision. County Court agreed to release defendant on his own recognizance pending sentencing and advised him that if he violated the conditions of his release, which included testing positive for the use of drugs, the court would not be bound by the sentencing commitment and could sentence him to 2 ½ years in prison. Prior to sentencing, defendant tested positive for drug use and County Court sentenced him to 2 ½ years in prison, to be followed by one year of postrelease supervision. Defendant now appeals.
Initially, defendant contends that his guilty plea was not knowing, voluntary and intelligent because he was not advised of potential sentencing consequences prior to entering his plea. Defendant, however, is foreclosed from raising this claim as it does not appear from the record that he made an appropriate postallocution motion (see People v. Buck, 136 A.D.3d 1117, 1118, 25 N.Y.S.3d 402 [2016] ; People v. Butler, 134 A.D.3d 1349, 1350, 22 N.Y.S.3d 617 [2015], lvs. denied 27 N.Y.3d 962, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016], 27 N.Y.3d 963, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). Moreover, we do not find that the narrow exception to the preservation requirement is applicable here given that defendant did not make any statements during the plea colloquy that negated his guilt (see People v. Buck, 136 A.D.3d at 1118, 25 N.Y.S.3d 402; People v. Butler, 134 A.D.3d at 1350, 22 N.Y.S.3d 617 ). Defendant's alternative argument that his sentence is harsh and excessive is precluded by his valid waiver of the right to appeal as County Court advised him of the consequences of violating the release conditions as well as the maximum sentence that could be imposed (see People v. Perkins,
125 A.D.3d 1045, 1047, 3 N.Y.S.3d 440 [2015] ; People v. Smith, 123 A.D.3d 1375, 1376, 999 N.Y.S.2d 276 [2014], lv. denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, CLARK and MULVEY, JJ., concur.