| People v Atkinson |
| 2015 NY Slip Op 00664 [124 AD3d 1149] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shahean A. Atkinson, Appellant. |
John P.M. Wappett, Public Defender, Lake George (Marcy I. Flores of counsel), forappellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Warren County (HallJr., J.), rendered June 26, 2013, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the third degree.
Defendant waived indictment and was charged in a superior court information withcriminal sale of a controlled substance in the third degree. He pleaded guilty to thischarge and waived his right to appeal, both orally and in writing. He was sentenced inaccordance with the plea agreement to four years in prison, to be followed by two yearsof postrelease supervision. Defendant appeals.
Defendant challenges the factual sufficiency of his plea allocution as well as theseverity of his sentence. A valid waiver of the right to appeal precludes a defendant fromraising these claims (see Peoplev Torres, 117 AD3d 1497, 1498 [2014], lv denied 24 NY3d 965 [2014];People v Perry, 50 AD3d1244, 1245 [2008], lv denied 10 NY3d 963 [2008]). However, the recordhere reveals that defendant's appeal waiver was deficient inasmuch as he was not clearlyadvised that the right to appeal was separate and distinct from the other rights that he wasforfeiting by pleading guilty, and County Court did not make a proper inquiry to confirmthat defendant had been advised and understood the significance of the written waiver(see People v Chappelle,121 AD3d 1166, 1167 [2014]; People v Burgette, 118 AD3d 1034, 1035 [2014]). In viewof this, defendant is not foreclosed from raising these claims. Nevertheless, the recorddoes [*2]not indicate that defendant moved to withdrawhis guilty plea based upon the factual insufficiency of the allocution, which he nowasserts, and for this reason his claim regarding the factual sufficiency of his plea is notpreserved (see People vWasley, 119 AD3d 1216, 1216 [2014], lv denied 24 NY3d 1048 [2014];see also People v O'Neill,116 AD3d 1240, 1241 [2014]). The narrow exception to the preservation rule isinapplicable inasmuch as the record does not disclose that defendant made statementscasting doubt upon his guilt or negating a material element of the crime (see People v Rouse, 119 AD3d1161, 1162-1163 [2014]; People v Pearson, 110 AD3d 1116, 1116 [2013]).
As for the sentence, it is neither harsh nor excessive. Defendant has a lengthycriminal record and he agreed to the sentence as part of the plea bargain. Consequently,we find no extraordinary circumstances nor any abuse of discretion warranting areduction of the sentence in the interest of justice (see People v Lussier, 109 AD3d 1023 [2013]; People v Rose, 79 AD3d1365, 1367 [2010]).
Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.