| People v Mydosh |
| 2014 NY Slip Op 03305 [117 AD3d 1195] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAlexander Mydosh, Appellant. |
Jane M. Bloom, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Eamonn Neary of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered June 12, 2012, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the third degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to one count ofcriminal possession of a weapon in the third degree and waived his right to appeal, orallyand in writing. He was thereafter sentenced, in accord with the plea agreement and as asecond felony offender, to three years in prison to be followed by five years ofpostrelease supervision. Defendant now appeals, and we affirm.
Despite defendant's contention otherwise, we initially find that his appeal waiver wasmade knowingly, voluntarily and intelligently. In defendant's written waiver, which wasexecuted in court, he acknowledged that he discussed the waiver with his counsel andthat he was knowingly and voluntarily waiving the right to appeal his conviction andsentence (see People vTorres, 110 AD3d 1119, 1119 [2013], lv denied 22 NY3d 1044 [2013];People v Fallen, 106 AD3d1118, 1119 [2013], lv denied 22 NY3d 1156 [2014]). Additionally, therecord demonstrates defendant's understanding that the waiver was separate and distinctfrom the rights he was relinquishing by pleading guilty (see People v Diaz, 72 AD3d1349, 1350 [2010], lv denied 15 NY3d 773 [2010]) and that he wasthoroughly advised of its ramifications (see People [*2]v Lopez, 6 NY3d248, 256 [2006]; People vFling, 112 AD3d 1001, 1002 [2013]; People v Henion, 110 AD3d 1349, 1350 [2013], lvdenied 22 NY3d 1088 [2014]; People v Foote, 102 AD3d 1056, 1057 [2013], lvdenied 20 NY3d 1098 [2013]).
Defendant also claims that the indictment was jurisdictionally defective. Althoughsuch claim survives both his guilty plea and appeal waiver, it is nonetheless without merit(see People v Martinez, 106AD3d 1379, 1379 [2013], lv denied 22 NY3d 957 [2013]; People v Kamburelis, 100AD3d 1189, 1189-1190 [2012]). Finally, defendant's challenge to the factualsufficiency of his guilty plea is both precluded by his appeal waiver and unpreserved forour review due to his apparent failure to make an appropriate postallocution motion (see People v MacDonald, 113AD3d 968, 968 [2014]; People v Durham, 110 AD3d 1145, 1145 [2013]; People v Sylvan, 107 AD3d1044, 1045 [2013], lv denied 22 NY3d 1141 [2014]). Contrary todefendant's contentions, he said nothing during the plea colloquy that would bring thiscase within the narrow exception to the preservation rule (see People vMacDonald, 113 AD3d at 968; People v Sylvan, 107 AD3d at 1045).
To the extent not specifically addressed, defendant's remaining claims have beenconsidered and found to be lacking in merit.
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.