| People v Merrill |
| 2014 NY Slip Op 08926 [123 AD3d 1339] |
| December 24, 2014 |
| Appellate Division, Third Department |
[*1](December 24, 2014)
| The People of the State of New York,Respondent, v Robert Merrill, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Albany County(Breslin, J.), rendered May 22, 2012, convicting defendant upon his plea of guilty of thecrime of attempted burglary in the second degree.
Defendant pleaded guilty to attempted burglary in the second degree and waived hisright to appeal. County Court thereafter sentenced him to five years in prison, to befollowed by three years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's contention, the plea colloquy and counseledwritten waiver executed by him demonstrate that he knowingly, intelligently andvoluntarily waived the right to appeal his conviction and sentence (see People v Long, 117 AD3d1326, 1326 [2014], lv denied 24 NY3d 1003 [2014]; People v Frasier, 105 AD3d1079, 1080 [2013], lv denied 22 NY3d 1088 [2014]). His challenge to thevoluntariness of his plea, which survives his appeal waiver, is unpreserved for our reviewas the record does not reflect that he made an appropriate postallocution motion (see People v Fate, 117 AD3d1327, 1328 [2014]; Peoplev Dozier, 115 AD3d 1001, 1001 [2014]). Further, the narrow exception to thepreservation rule is inapplicable here, as defendant did not make any statements duringthe plea colloquy that were inconsistent with his guilt or that call into question thevoluntariness of his plea (seePeople v Chavis, 117 AD3d 1193, 1194 [2014]; People v Watson, 115 AD3d1016, 1017 [2014], lv denied 24 NY3d 965 [2014]). Finally, defendant's[*2]contention that the imposed sentence is harsh andexcessive is foreclosed by his valid waiver of the right to appeal (see People v Brown, 115AD3d 1115, 1115 [2014], lv denied 24 NY3d 959 [2014]; People v Waldron, 115 AD3d1116, 1117 [2014], lv denied 23 NY3d 969 [2014]).
McCarthy, Rose, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.