| People v Edwards |
| 2018 NY Slip Op 02833 [160 AD3d 1280] |
| April 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Henry Edwards, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Joel E. Abelove, District Attorney, Troy (Nicholas W. Dorando of counsel), forrespondent.
Devine, J.P. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered January 14, 2015, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
Defendant was charged in an indictment with criminal sale of a controlled substance in thefirst degree. He entered a guilty plea to the reduced charge of criminal sale of a controlledsubstance in the third degree and waived his right to appeal upon the understanding that he wouldbe sentenced to six years in prison followed by two years of postrelease supervision. CountyCourt imposed the agreed-upon sentence, and this appeal by defendant ensued.
Initially, defendant's challenge to the validity of his waiver of the right to appeal isunpersuasive. During the plea colloquy, County Court explained that the waiver of the right toappeal was separate and distinct from the trial-related rights that defendant was forfeiting bypleading guilty. Defendant confirmed that he understood and, after conferring with counsel,executed a detailed written waiver in open court. Inasmuch as "the oral colloquy, combined withthe written waiver, demonstrate his understanding and voluntary waiver of his right to appeal,"defendant's challenge to the severity of the agreed-upon sentence imposed is precluded (People v Gagnon, 153 AD3d 1451,1452 [2017] [internal quotation marks and citations omitted]; see People v Zeller, 153 AD3d 1049, 1050-1051 [2017]).
Although defendant's challenge to the voluntariness of his plea survives his valid appeal[*2]waiver, it is unpreserved for our review in the absence of anappropriate postallocution motion (seePeople v McRae, 150 AD3d 1328, 1329 [2017], lv denied 29 NY3d 1093[2017]; People v Bonds, 148 AD3d1304, 1305 [2017], lv denied 29 NY3d 1076 [2017]).[FN*] The plea colloquy does not, contrary todefendant's contention, contain anything that would bring this case within the narrow exceptionto the preservation requirement (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v LaSanta, 158 AD3d 897,897 [2018]). Were we to reach this issue, we would find defendant's argument to be unavailing(see People v White, 153 AD3d1041, 1042 [2017]). His ineffective assistance of counsel claim also survives his appealwaiver to the extent that it impacts upon the voluntariness of his guilty plea, but is unpreservedfor our review in the absence of an appropriate postallocution motion (see People v Young, 158 AD3d955, 956 [2018]; People vWilliams, 150 AD3d 1549, 1551 [2017]). Accordingly, the judgment of conviction isaffirmed.
Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Notably, defendant stressed athis sentencing that he did not wish to withdraw his plea.