| People v Macon |
| 2016 NY Slip Op 05886 [142 AD3d 739] |
| August 25, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTerry Macon, Also Known as Tennessee, Appellant. |
Salvatore Adamo, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Garry, J.P. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered February 4, 2014, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal saleof a controlled substance in the third degree and waived his right to appeal. He wasthereafter sentenced, in accord with the terms of the plea agreement, to five years inprison, to be followed by two years of postrelease supervision. Defendant nowappeals.
Initially, we note that defendant's waiver of the right to appeal was valid. CountyCourt explained that this right was separate from the other rights that defendant wasforfeiting by pleading guilty and defendant communicated his understanding. He thenproceeded to execute a detailed written waiver in open court after reviewing it withcounsel. Thus, defendant is foreclosed by his valid waiver from challenging the severityof the sentence (see People vMiller, 137 AD3d 1485, 1485 [2016]; People v Rushlow, 137 AD3d 1482, 1483 [2016]).
Defendant also challenges the voluntariness of his guilty plea. Although it is notprecluded by his valid waiver of the right to appeal, this claim has not been preserved forour review, as the record does not reveal that he made an appropriate postallocutionmotion (see People v Blair,136 AD3d 1105, 1106 [2016], lv denied 27 NY3d 1066 [2016]; People v Walker, 135 AD3d1244, 1244-1245 [2016]). Notably, defendant did not make any statements duringthe plea colloquy that cast doubt upon his guilt and thus trigger the narrow exception tothe preservation requirement (see People v Lopez, 71 NY2d 662, 665 [1988];People v Walker, [*2]135 AD3d at 1245).Further, defendant's claim of ineffective assistance of counsel implicates thevoluntariness of his guilty plea and, although it also survives his appeal waiver, likewisehas not been preserved for our review, for the reason noted above (see People v Hughes, 134AD3d 1301, 1302 [2015], lv denied 27 NY3d 966 [2016]; People v Bethea, 133 AD3d1033, 1034 [2015], lv denied 27 NY3d 992 [2016]).
Egan Jr., Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.