People v Beblowski

2015 NY Slip Op 03579 [127 AD3d 1505]

April 30, 2015

Appellate Division, Third Department

As corrected through Wednesday, June 3, 2015

[*1]

The People of the State of New York, Respondent, vTimothy Beblowski, Appellant.

Brian M. Callahan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.

Peters, P.J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered February 25, 2013, convicting defendant upon his plea of guilty ofthe crime of burglary in the second degree (three counts).

In satisfaction of a 25-count indictment, defendant pleaded guilty to three counts ofburglary in the second degree and waived his right to appeal from the conviction andsentence. County Court thereafter sentenced defendant within the range contemplated bythe plea agreement, namely, an aggregate prison term of eight years to be followed bypostrelease supervision of 31/2 years. Defendant now appeals.

We affirm. Defendant's contention "that his plea should be vacated due to CountyCourt's failure to inquire as to a potential intoxication defense is not preserved for ourreview, as the record does not reflect that defendant made an appropriate postallocutionmotion" (People v Brown,125 AD3d 1049, 1049 [2015]; see People v Duggins, 114 AD3d 1001, 1001-1002 [2014],lv denied 23 NY3d 962 [2014]). Defendant, in any case, gave no indicationduring the plea colloquy that he was impaired at the time that the burglaries occurred,admitted without hesitation that he had committed them, and "said nothing that wouldhave warranted further inquiry by County Court" (People v Duggins, 114 AD3dat 1002; see People v Brown, 125 AD3d at 1049-1050). Finally, defendant doesnot dispute the validity of his appeal waiver. Although his ineffective assistance ofcounsel argument survives the appeal waiver to the extent that it [*2]implicates the voluntariness of his plea, it is alsounpreserved for our review given the absence of an appropriate postallocution motion(see People v Smith, 123AD3d 1375, 1376 [2014]; People v Guyette, 121 AD3d 1430, 1431-1432[2014]).

Lahtinen, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.