| People v Constantopoules |
| 2016 NY Slip Op 05589 [141 AD3d 942] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Calvin Constantopoules, Also Known as CalvinConstantopoulos, Also Known as Forty, Appellant. |
Timothy S. Brennan, Schenectady for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered January 8, 2014, convicting defendant upon his plea of guilty of thecrime of attempted criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to the reduced charge of attempted criminal possession of acontrolled substance in the third degree in full satisfaction of a four-count indictmentpursuant to a plea agreement that included a waiver of the right to appeal. Consistentwith the agreement, County Court thereafter sentenced defendant, as a second felonyoffender, to six years in prison to be followed by 2
We affirm. Initially, we reject defendant's challenge to the validity of his appealwaiver, as the plea colloquy and the written waiver executed in open court demonstratethat he knowingly, intelligently and voluntarily waived the right to appeal his convictionand sentence (see People vCrispell, 136 AD3d 1121, 1122 [2016]; People v Donah, 127 AD3d 1413, 1413 [2015]).Defendant's valid waiver of the right to appeal precludes his claim that his sentence isharsh and excessive (see Peoplev Clark, 135 AD3d 1239, 1240 [2016], lv denied 27 NY3d 995 [2016];People v Clapper, 133AD3d 1037, 1038 [2015], lv denied 27 NY3d 995 [2016]).
[*2] Defendant's claims that his guilty plea was notknowingly, intelligently and voluntarily entered and that he was denied the effectiveassistance of counsel are unpreserved for our review, as the record does not indicate thathe made an appropriate postallocution motion (see People v Almeida, 127 AD3d 1499, 1500 [2015], lvdenied 26 NY3d 1006 [2015]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lvdenied 24 NY3d 965 [2014]). Regarding the plea, the narrow exception to thepreservation rule is inapplicable, inasmuch as defendant did not make any statementsduring the plea allocution that negated a material element of the crime or otherwise castdoubt upon his guilt (see Peoplev Atkinson, 124 AD3d 1149, 1150 [2015], lv denied 25 NY3d 949[2015]; People v Lewis, 118AD3d 1125, 1125-1126 [2014], lv denied 24 NY3d 1003 [2014]).
Peters, P.J., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.