People v Mayo

2015 NY Slip Op 05720 [130 AD3d 1099]

July 2, 2015

Appellate Division, Third Department

As corrected through Wednesday, September 2, 2015

[*1]

The People of the State of New York, Respondent, vKatherine M. Mayo, Appellant.

Bruce Evans Knoll, Albany, for appellant.

Stuart M. Cohen, Special Prosecutor, Rensselaer, for respondent.

Devine, J. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered January 10, 2014, convicting defendant upon her plea of guilty ofthe crime of criminal mischief in the third degree.

Defendant waived indictment, pleaded guilty to a superior court informationcharging her with criminal mischief in the third degree and waived her right to appeal.County Court thereafter sentenced her, as a second felony offender, to a prison term of11/2 to 3 years. Defendant now appeals.

We affirm. Contrary to defendant's contention, her waiver of the right to appeal wasvalid. Both the plea colloquy and the written waiver informed her of the separate anddistinct nature of her right to appeal, and County Court confirmed that defendant haddiscussed the waiver with counsel and understood its ramifications. Accordingly, weconclude that she knowingly, intelligently and voluntarily waived the right to appeal herconviction and sentence (seePeople v Lyman, 119 AD3d 968, 969 [2014]; People v Fligger, 117 AD3d1343, 1344 [2014], lv denied 23 NY3d 1061 [2014]). Defendant's validwaiver precludes her contention that her sentence is harsh and excessive (see People v Velazquez, 125AD3d 1063, 1063 [2015], lv denied 25 NY3d 993 [2015]; People v Merrill, 123 AD3d1339, 1340 [2014]).

Defendant's challenge to the factual sufficiency of her guilty plea and her claim thatthe plea should be vacated because County Court failed to inquire as to a potentialintoxication [*2]defense are unpreserved for our review,inasmuch as the record does not indicate that she made an appropriate postallocutionmotion (see People vPearson, 110 AD3d 1116, 1116 [2013]; People v Campbell, 81 AD3d 1184, 1185 [2011]).Moreover, defendant did not make any statements during the plea colloquy that castdoubt upon her guilt or negated an essential element of the crime so as to trigger thenarrow exception to the preservation rule or obligate County Court to undertake furtherinquiry concerning a potential intoxication defense (see People v Brown, 125 AD3d 1049, 1049-1050 [2015];People v Pearson, 110 AD3d at 1116).

McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.