| People v Mann |
| 2016 NY Slip Op 05190 [140 AD3d 1532] |
| June 30, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Sam Mann, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered August 14, 2014, convicting defendant upon his plea of guilty ofthe crime of strangulation in the second degree.
Defendant pleaded guilty to strangulation in the second degree and waived his rightto appeal. County Court sentenced defendant as a predicate felon, in accordance with theplea agreement, to a prison term of seven years followed by five years of postreleasesupervision. Defendant appeals.
Initially, we are unpersuaded by defendant's contention that the combined oral andwritten waiver of the right to appeal was not knowing, voluntary and intelligent (see People v Lopez, 6 NY3d248, 256 [2006]; People vBelile, 137 AD3d 1460, 1461 [2016]). The record reflects that County Courtexplained, and defendant acknowledged that he understood, that the waiver of the rightto appeal is separate and distinct from the rights automatically forfeited by the guiltyplea. In addition, defendant confirmed that he had read, understood and signed thewritten waiver of appeal, which he had executed in open court. Given defendant's validwaiver of the right to appeal, his challenge to the agreed-upon sentence as harsh andexcessive is precluded (seePeople v Bethea, 133 AD3d 1033, 1033 [2015]).
Although defendant's challenge to the voluntariness of his guilty plea survives the[*2]appeal waiver, it is unpreserved for our review as therecord does not indicate that defendant made any postallocution motion to withdraw hisguilty plea (see CPL 220.60 [3]; People v Buck, 136 AD3d 1117, 1118 [2016]; People v Blair, 136 AD3d1105, 1106 [2016], lv denied — NY3d — [May 10, 2016]).Furthermore, the narrow exception to the preservation rule is inapplicable as defendantmade no statements during the plea allocution that were inconsistent with his guilt orotherwise called into question the voluntariness of his plea (see People v Sawyer, 135AD3d 1164, 1165 [2016], lv denied 27 NY3d 1006 [2016]; People vBethea, 133 AD3d at 1034).
Lahtinen, J.P., Garry, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.