| People v Brown |
| 2015 NY Slip Op 01195 [125 AD3d 1049] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vCharles E. Brown, Appellant. |
Samuel D. Castellino, Big Flats, for appellant, and appellant pro se.
Gwen Wilkinson, District Attorney, Ithaca (Dan Johnson of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Tompkins County(Rowley, J.), rendered September 26, 2012, convicting defendant upon his plea of guiltyof the crime of attempted burglary in the second degree.
In full satisfaction of a three-count indictment, defendant pleaded guilty to attemptedburglary in the second degree and waived his right to appeal his conviction and sentence.County Court thereafter sentenced defendant to three years in prison and three years ofpostrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal wasvalid. The record reflects that County Court distinguished the right to appeal from therights automatically forfeited by a guilty plea and explained the consequences of thewaiver. Defendant thereafter affirmed his understanding of the waiver and executed acounseled written waiver (seePeople v Chavis, 117 AD3d 1193, 1193-1194 [2014]; People v Campbell, 114 AD3d996, 997 [2014]). His valid appeal waiver precludes from our review his contentionthat his sentence is harsh and excessive (see People v White, 119 AD3d 1286, 1287 [2014]; People v Brown, 115 AD3d1115, 1115 [2014], lv denied 24 NY3d 959 [2014]).
Defendant's claim that his plea should be vacated due to County Court's failure toinquire as to a potential intoxication defense is not preserved for our review, as therecord does not reflect that defendant made an appropriate postallocution motion (seePeople v Duggins, 114 [*2]AD3d 1001, 1001-1002[2014], lv denied 23 NY3d 962 [2014]; People v Phillips, 30 AD3d 911 [2006], lv denied 7NY3d 869 [2006]). Moreover, the narrow exception to the preservation rule is notapplicable, as defendant did not make any statements during the plea colloquy that castsignificant doubt upon his guilt or obligated County Court to inquire as to a potentialintoxication defense (see People v Duggins, 114 AD3d at 1002; People v Pearson, 110 AD3d1116, 1116 [2013]). Finally, defendant's claim that he received ineffective assistanceof counsel by counsel's failure to advise him of a possible intoxication defense and toproperly investigate his case implicates matters outside of the record and, as such, ismore properly considered in the context of a CPL article 440 motion (see People v Sylvan, 107AD3d 1044, 1045-1046 [2013], lv denied 22 NY3d 1141 [2014]; People v Carbone, 101 AD3d1232, 1234-1235 [2012]).
Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.