| People v Martinez |
| 2015 NY Slip Op 05709 [130 AD3d 1087] |
| July 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rey Martinez, Appellant. |
James P. Milstein, Public Defender (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Garry, J.P. Appeal from a judgment of the Supreme Court (Teresi, J.), enteredJanuary 22, 2013 in Albany County, convicting defendant upon his plea of guilty of thecrime of attempted assault in the second degree.
Defendant waived indictment and pleaded guilty to a charge contained in a superiorcourt information of attempted assault in the second degree and waived his right toappeal in a written waiver as part of the plea allocution and pursuant to a negotiated pleaagreement. The charges stem from an incident in which defendant intentionally cut thevictim with a butcher knife. He was sentenced as a second felony offender to theagreed-upon prison term of 1
Initially, defendant's challenge to his waiver of appeal as not knowing, voluntary orintelligent lacks merit, as the plea colloquy reflects that Supreme Court made clear itsseparate and distinct nature, and confirmed that defendant had read the written waiver ofappeal before signing it and after discussing it with counsel (see People v Lopez, 6 NY3d248, 256 [2006]; People vGuyette, 121 AD3d 1430, 1430-1431 [2014]). Given the valid waiver of appeal,defendant is precluded from challenging his negotiated sentence as harsh and excessive(see People v Lopez, 6 NY3d at 256). Although defendant's challenge to thevoluntariness of his plea survives his appeal waiver (see People v Seaberg, 74NY2d 1, 10 [1989]), this issue is unpreserved for our review as the record does notreflect that he made an appropriate postallocution motion, and the exception to thepreservation requirement is inapplicable (see People v Lopez, 71 NY2d 662,665-666 [1988]; People vBalbuena, 123 AD3d 1384, 1385 [2014]).
[*2] With regard to defendant's argument that he should nothave been sentenced as a second felony offender, it implicates the legality of the sentenceand is not precluded by his appeal waiver (see People v Parker, 121 AD3d 1190, 1190 [2014]).Moreover, to the extent that defendant contends that the unlawfulness of his sentence isclear on the face of the record, it may be raised for the first time on appeal (see People v Santiago, 22NY3d 900, 903 [2013]; People v Samms, 95 NY2d 52, 57 [2000]). Asrelevant here, to impose a second felony offender sentence, Supreme Court was requiredto find that defendant had been convicted of a felony for which a sentence of over oneyear was authorized, the sentence on the predicate conviction must have been imposedbefore he committed the present felony, and the predicate sentence must have beenimposed not more than 10 years before commission of the present felony, excludingperiods in which he was incarcerated for any reason (see Penal Law§ 70.06 [1] [b] [i-v]). The People submitted a predicate statement,presentence report and other documentary evidence establishing that defendant had beensentenced to 3
Rose, Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.