| People v Almeida |
| 2015 NY Slip Op 03575 [127 AD3d 1499] |
| April 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Almeida, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (Teresi, J.), renderedOctober 9, 2012 in Albany County, convicting defendant upon his plea of guilty of thecrime of criminal contempt in the first degree.
Defendant waived indictment, pleaded guilty to a superior court informationcharging him with criminal contempt in the first degree and waived his right to appeal.He was thereafter sentenced, as a second felony offender, to a prison term of1
We affirm. Initially, we reject defendant's contention that his waiver of the right toappeal was invalid. Supreme Court distinguished the waiver of the right to appeal fromthe rights automatically forfeited upon a guilty plea. Defendant further acknowledgedthat he understood the rights he was waiving and had an opportunity to discuss thewaiver with counsel, and he executed a written waiver in open court. Accordingly, wefind that he knowingly, intelligently and voluntarily waived the right to appeal hisconviction and sentence (seePeople v Smith, 123 AD3d 1375, 1375-1376 [2014]; People v Chavis, 117 AD3d1193, 1193-1194 [2014]). In light of his valid appeal waiver, his assertion that hissentence is harsh and excessive is precluded (see People v Balbuena, 123 AD3d 1384, 1386 [2014]; People v White, 119 AD3d1286, 1287 [2014], lv denied 24 NY3d 1222 [2015]).
Turning to defendant's claims that his guilty plea was not knowing, intelligent and[*2]voluntary and that he was denied the effectiveassistance of counsel, these issues are unpreserved for our review, inasmuch as the recorddoes not indicate 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, withrespect to the plea, defendant did not make any statements during the plea allocution thatcast doubt upon his guilt or negated a material element of the crime so as to trigger thenarrow exception to the preservation requirement (see People v Waite, 120 AD3d 1446, 1447 [2014]; People v Trombley, 115 AD3d1114, 1114 [2014], lv denied 23 NY3d 1068 [2014]).
Peters, P.J., Lahtinen and Rose, JJ., concur. Ordered that the judgment isaffirmed.