| People v Peterson |
| 2017 NY Slip Op 01024 [147 AD3d 1148] |
| February 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MichaelPeterson, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.),rendered September 6, 2013, convicting defendant upon his plea of guilty of the crime ofcriminal contempt in the first degree, and (2) from a judgment of said court, rendered November15, 2013, which revoked defendant's probation and imposed a sentence of imprisonment.
Defendant pleaded guilty to criminal contempt in the first degree and waived his right toappeal. County Court sentenced him on September 6, 2013 to time served and a five-year term ofprobation. On September 27, 2013, defendant was arrested and charged with falsely reporting anincident in the third degree and assault in the third degree. Based upon his arrest, defendant alsowas charged with violating his probation. Pursuant to a negotiated plea agreement, whichincluded a waiver of the right to appeal, defendant admitted to violating his probation. OnNovember 15, 2013, County Court revoked defendant's probation and resentenced him to theagreed-upon prison term of 1 to 3 years. Defendant now appeals.[FN*]
[*2] We affirm. Contrary to defendant's contention, the plea colloquies and the counseledwritten waivers demonstrate that he knowingly, intelligently and voluntarily waived the right toappeal his conviction and resentence (see People v Long, 117 AD3d 1326, 1326 [2014], lv denied24 NY3d 1003 [2014]; People vFrasier, 105 AD3d 1079, 1080 [2013], lv denied 22 NY3d 1088 [2014]). Thevalid appeal waivers preclude defendant's challenge to his resentence as harsh and excessive (see People v Moulton, 134 AD3d1251, 1252 [2015]; People vHandly, 122 AD3d 1007, 1008 [2014]).
Defendant's challenges to the voluntariness of both his plea to the criminal contempt chargeand his admission to violating his probation are not preserved for our review, inasmuch as therecord fails to disclose that he made an appropriate postallocution motion and, further, defendantmade no statements during the colloquies so as to trigger the narrow exception to thepreservation rule (see People vWoodard, 139 AD3d 1238, 1238-1239 [2016], lv denied 28 NY3d 939 [2016];People v Skidds, 123 AD3d1342, 1342-1343 [2014], lv denied 25 NY3d 992 [2015]). Similarly, the lack of anappropriate postallocution motion renders defendant's claim that he was denied the effectiveassistance of counsel unpreserved for our review (see People v Beach, 115 AD3d 1117, 1118 [2014]; People v Alexander, 110 AD3d1111, 1112 [2013], lv denied 22 NY3d 1154 [2014]).
Peters, P.J., Rose, Devine and Aarons, JJ., concur. Ordered that the judgments areaffirmed.
Footnote *:Defendant's pro se notice ofappeal, filed in August 2014, is from a "judgment" rendered July 10, 2013. While there is nosuch judgment in the record before us, it appears that defendant intended to appeal from both theSeptember 6, 2013 and November 15, 2013 judgments. As such, we will exercise our discretionand overlook this error (see CPL 460.10 [6]).