Opinion
06-30-2016
The PEOPLE of the State of New York, Respondent, v. Neal D. SOMMERS, Appellant.
Thomas F. Garner, Middleburgh, for appellant. James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.
Thomas F. Garner, Middleburgh, for appellant.
James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.
Before: LAHTINEN, J.P., ROSE, LYNCH, CLARK and AARONS, JJ.
Opinion
LYNCH, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered January 5, 2015, convicting defendant upon his plea of guilty of the crime of rape in the first degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to rape in the first degree, and his plea included the waiver of the right to appeal. County Court thereafter imposed the agreed-upon sentence of 12 years in prison to be followed by 10 years of postrelease supervision. Defendant appeals.
We affirm. Contrary to defendant's contention, he validly waived the right to appeal his conviction and sentence. County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea, and defendant acknowledged that he understood and was voluntarily waiving his right (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Rubio, 133 A.D.3d 1041, 1042, 20 N.Y.S.3d 666 [2015] ). Defendant also signed a written waiver that explained the appeal waiver and indicated that counsel had discussed its ramifications with him (see People v. Clark, 135 A.D.3d 1239, 1239–1240, 23 N.Y.S.3d 481 [2016], lv. denied 27 N.Y.3d 995, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Fate, 117 A.D.3d 1327, 1328, 986 N.Y.S.2d 672 [2014], lv. denied 24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 [2014] ). Defendant's valid appeal waiver precludes our review of his claim that his sentence is harsh and excessive (see People v. Smith, 136 A.D.3d 1107, 1109, 25 N.Y.S.3d 395 [2016], lv. denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [May 13, 2016] ; People v. Butler, 134 A.D.3d 1349, 1350, 22 N.Y.S.3d 617 [2015], lvs. denied 27 N.Y.3d 962, 963, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ).
Defendant also argues that his plea was not knowing, intelligent and voluntary because County Court failed to advise him of the trial-related rights forfeited by pleading guilty (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ). Inasmuch as defendant failed to make a postallocution motion to withdraw his plea, despite having several weeks to do so prior to his sentencing, this issue is not preserved for our review (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Walker, 135 A.D.3d 1244, 1245, 23 N.Y.S.3d 485 [2016] ). Moreover, the record actually shows that defendant was fully advised of his trial-related rights during the allocution.
ORDERED that the judgment is affirmed.
LAHTINEN, J.P., ROSE, CLARK and AARONS, JJ., concur.