| People v Smith |
| 2014 NY Slip Op 09066 [123 AD3d 1375] |
| December 31, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJamel Smith, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered August 22, 2012, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the thirddegree in full satisfaction of an indictment, a probation violation and an unchargedcrime, and waived his right to appeal. Pursuant to the plea agreement, defendant was tobe sentenced to four years in prison, to be followed by two years of postreleasesupervision. The terms of the plea agreement included the requirement that defendantcooperate with the Probation Department in its preparation of the presentenceinvestigation report, which included answering its inquiries in conformity with hisrepresentations during the plea allocution and accepting responsibility for his crime.County Court warned defendant that he could receive an enhanced sentence of up to 12years in prison if he violated the terms of the plea agreement. At sentencing, defendantacknowledged that he made statements to the Probation Department that wereinconsistent with those made during the plea allocution. County Court thereafter foundhim in violation of the plea agreement and sentenced him, as a second felony offender, to5
We affirm. Contrary to defendant's contention, we find that he knowingly,intelligently [*2]and voluntarily waived his right toappeal his conviction and sentence, as the record demonstrates that County Courtdistinguished the right to appeal from the rights automatically forfeited by his guilty pleaand defendant acknowledged his understanding of the ramifications of the waiver andexecuted a written waiver in open court (see People v Fate, 117 AD3d 1327, 1328 [2014]; People v Sczepankowski, 110AD3d 1115, 1115 [2013]). Defendant's contention that his guilty plea wasinvoluntary, which survives his appeal waiver, is unpreserved for our review inasmuch asthe record does not reflect that he made an appropriate postallocution motion (see People v Lewis, 118 AD3d1125, 1125 [2014], lv denied 24 NY3d 1003 [2014]; People v Vandemark, 117AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]). Moreover,defendant did not make any statements during the plea allocution that negated anessential element of the crime or otherwise cast doubt upon his guilt so as to trigger theexception to the preservation rule (see People v Wasley, 119 AD3d 1216, 1216-1217 [2014],lv denied 24 NY3d 1048 [Nov. 25, 2014]; People v Santiago, 118 AD3d1032, 1033 [2014]). To the extent that defendant's ineffective assistance of counselclaim impacts the voluntariness of his plea, it also survives his appeal waiver, but islikewise unpreserved for our review in the absence of an appropriate postallocutionmotion (see People v Wiley,112 AD3d 998, 998 [2013]; People v Walton, 101 AD3d 1489, 1490 [2012]).
Contrary to defendant's contention, County Court was justified in imposing anenhanced sentence, inasmuch as defendant admittedly violated an explicit condition ofthe plea agreement (see People vCoffey, 77 AD3d 1202, 1203-1204 [2010], lv denied 18 NY3d 882[2012]; People v Faulkner,54 AD3d 1134, 1135 [2008], lv denied 11 NY3d 854 [2008]). Finally,defendant's contention that the enhanced sentence is harsh and excessive is precluded byhis waiver of the right to appeal, inasmuch as County Court informed him of the pleaconditions and the maximum sentence that could be imposed if he violated the pleaagreement (see People vThomas, 81 AD3d 997, 998 [2011], lv denied 16 NY3d 900 [2011]; People v Bove, 64 AD3d812, 813 [2009], lv denied 13 NY3d 858 [2009]).
Peters, P.J., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.