| People v Ramos |
| 2016 NY Slip Op 00537 [135 AD3d 1234] |
| January 28, 2016 |
| Appellate Division, Third Department |
[*1](January 28, 2016)
| The People of the State of New York, Respondent, v Ariel Ramos, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Teresi, J.), entered October2, 2012 in Albany County, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a firearm in the third degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and entered aplea of guilty to criminal sale of a firearm in the third degree as charged in a superiorcourt information. He also orally waived his right to appeal and signed a written waiverof appeal in open court. Defendant was then sentenced, as a second felony offender, to asix-year prison term with five years of postrelease supervision, and he now appeals.
Initially, defendant contends that his guilty plea was not voluntary because he feltrushed into the agreement and unprepared for its full consequences. However, defendantfailed to preserve this contention for our review by making an appropriate postallocutionmotion (see People vVellon, 128 AD3d 1274, 1274 [2015], lv denied 26 NY3d 1043 [2015])."Moreover, given that defendant did not make any statements inconsistent with his guiltwhen entering his plea, the narrow exception to the preservation requirement isinapplicable" (People vRoyce, 122 AD3d 1008, 1009 [2014] [citation omitted]; see People v Monk, 113 AD3d999, 1000 [2014], lv denied 23 NY3d 1065 [2014]).
Defendant also contends that his appeal waiver is invalid, citing his confusionregarding its meaning and consequences. While it was unnecessary for defendant topreserve this challenge in order to raise it here (see People v Vellon, 128 AD3d at1275; People v Crump, 107 AD3d [*2]1046,1046 [2013], lv denied 21 NY3d 1014 [2013]), we find that Supreme Court'scareful instructions, defendant's subsequent execution of a written appeal waiver afterconferring with counsel and defendant's own affirmative statements on the record allconfirm that the waiver was entered knowingly, voluntarily and intelligently (see People v Lopez, 6 NY3d248, 256-257 [2006]; People v Kormos, 126 AD3d 1039, 1039-1040 [2015]; People v Toback, 125 AD3d1060, 1061 [2015], lv denied 25 NY3d 993 [2015]).
Defendant further contends that, for several reasons, he was deprived of the effectiveassistance of counsel. However, he did not raise these claims in a postallocution motionso as to preserve them for our review (see People v Saylor, 132 AD3d 1018, 1018 [2015]; People v Lord, 128 AD3d1277, 1278 [2015]). Moreover, except to the extent that these claims could beconstrued to have impacted upon the voluntariness of his plea, they are precluded by hisvalid appeal waiver (see People v Lopez, 6 NY3d at 256; People vToback, 125 AD3d at 1061; People v Glynn, 73 AD3d 1290, 1291 [2010]). In anyevent, "nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Wares, 124 AD3d1079, 1080 [2015] [internal quotation marks and citations omitted], lvdenied 25 NY3d 993 [2015]; see People v Trimm, 129 AD3d 1215, 1216-1217[2015]).
Finally, defendant's challenge to the sentence as harsh and excessive is precluded byhis valid waiver of appeal (see People v Lopez, 6 NY3d at 256).
Peters, P.J., Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.