Opinion
10-05-2017
The PEOPLE of the State of New York, Respondent, v. Mark A. SHILLABEER, Appellant.
Brian M. Quinn, Albany, for appellant. Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: EGAN JR., J.P., LYNCH, ROSE and MULVEY, JJ.
ROSE, J.Appeal from a judgment of the County Court of Saratoga County (Sypniewski, J.), rendered July 20, 2015, convicting defendant upon his plea of guilty of the crime of disorderly conduct.
Defendant had a physical altercation with a police officer during a prisoner exchange. As a result, he was charged in an indictment with assault in the third degree. Defendant moved to dismiss the indictment on the ground that there was insufficient evidence that the officer who was involved in the altercation sustained physical injury. The motion was denied. Thereafter, in satisfaction of the indictment, defendant pleaded guilty to the reduced charge of disorderly conduct and waived his right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, he was sentenced to time served. He now appeals.
Defendant challenges the denial of his motion to dismiss the indictment and the voluntariness of his guilty plea. We note that the former claim, which is not jurisdictional in nature, is precluded by defendant's guilty plea and waiver of the right to appeal, the latter of which adequately complied with the requirements of People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 (2006) (see People v. Young, 100 A.D.3d 1186, 1187, 954 N.Y.S.2d 244 [2012], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; People v. Smith, 90 A.D.3d 1148, 1149, 933 N.Y.S.2d 912 [2011] ). Although defendant is not foreclosed by his waiver of the right to appeal from contesting the voluntariness of his guilty plea, this claim has not been preserved for our review given that the record does not disclose that he made an appropriate postallocution motion (see People v. Bonds, 148 A.D.3d 1304, 1305, 47 N.Y.S.3d 916 [2017], lvs. denied 29 N.Y.3d 1076, 1081, – ––N.Y.S.3d ––––, ––––, ––– N.E.3d ––––, ––– [2017]; People v. Woods, 147 A.D.3d 1156, 1156–1157, 46 N.Y.S.3d 441 [2017], lv. denied 29 N.Y.3d 1089, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2017] ). Moreover, defendant did not make any statements during the plea colloquy that cast doubt upon his guilt such as to invoke the narrow exception to the preservation requirement (see People v. Bonds, 148 A.D.3d at 1305, 47 N.Y.S.3d 916; People v. Woods, 147 A.D.3d at 1157, 46 N.Y.S.3d 441). Therefore, the judgment must be affirmed.
ORDERED that the judgment is affirmed.
EGAN JR., J.P., LYNCH and MULVEY, JJ., CONCUR.