| People v Sommers |
| 2016 NY Slip Op 05195 [140 AD3d 1537] |
| June 30, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Neal D. Sommers, Appellant. |
Thomas F. Garner, Middleburgh, for appellant.
James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered January 5, 2015, convicting defendant upon his plea of guilty ofthe crime of rape in the first degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to rape in the firstdegree, and his plea included the waiver of the right to appeal. County Court thereafterimposed the agreed-upon sentence of 12 years in prison to be followed by 10 years ofpostrelease supervision. Defendant appeals.
We affirm. Contrary to defendant's contention, he validly waived the right to appealhis conviction and sentence. County Court distinguished the right to appeal from therights automatically forfeited by a guilty plea, and defendant acknowledged that heunderstood and was voluntarily waiving his right (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Rubio, 133 AD3d1041, 1042 [2015]). Defendant also signed a written waiver that explained theappeal waiver and indicated that counsel had discussed its ramifications with him (see People v Clark, 135 AD3d1239, 1239-1240 [2016], lv denied 27 NY3d 995 [2016]; People v Fate, 117 AD3d1327, 1328 [2014], lv denied 24 NY3d 1083 [2014]). Defendant's validappeal waiver precludes our review of his claim that his sentence is harsh and excessive(see People v Smith, 136AD3d 1107, 1109 [2016], lv denied — NY3d — [May 13,2016]; People v Butler, 134AD3d 1349, 1350 [2015], lv denied 27 NY3d 963 [2016]).
Defendant also argues that his plea was not knowing, intelligent and voluntarybecause County Court failed to advise him of the trial-related rights forfeited by pleadingguilty (see Boykin v Alabama, 395 US 238, 243 [1969]). Inasmuch as defendantfailed to make a [*2]postallocution motion to withdrawhis plea, despite having several weeks to do so prior to his sentencing, this issue is notpreserved for our review (seePeople v Conceicao, 26 NY3d 375, 382 [2015]; People v Walker, 135 AD3d1244, 1245 [2016]). Moreover, the record actually shows that defendant was fullyadvised of his trial-related rights during the allocution.
Lahtinen, J.P., Rose, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.