| People v Cox |
| 2017 NY Slip Op 00344 [146 AD3d 1154] |
| January 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rockne Cox, Appellant. |
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Franklin County (MainJr., J.), rendered January 27, 2014, convicting defendant upon his plea of guilty of thecrimes of criminal sale of a firearm in the third degree and aggravated unlicensedoperation of a motor vehicle in the first degree.
In satisfaction of two separate indictments, defendant pleaded guilty to aggravatedunlicensed operation of a motor vehicle in the first degree and criminal sale of a firearmin the third degree. He orally waived his right to appeal when entering his guilty plea. Hewas thereafter sentenced, in accordance with the terms of the plea agreement, toconcurrent prison terms of 1 to 3 years on the unlicensed operation conviction and fouryears on the criminal sale conviction, the latter of which included a three-year period ofpostrelease supervision. Defendant now appeals.
We affirm. Although not precluded by his waiver of the right to appeal, defendant'schallenge to the voluntariness of his plea is unpreserved as the record does not reflectthat he made an appropriate postallocution motion (see People v Lloyd, 142 AD3d 1250, 1251 [2016], lvdenied 28 NY3d 1073 [2016]; People v Macon, 142 AD3d 739 [2016], lv denied28 NY3d 1073 [2016]). Moreover, the narrow exception to the preservation rule isinapplicable as there is no indication that defendant made any statements during the pleaproceedings that cast doubt upon his guilt or called into question the voluntariness of hisplea (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Maldonado, 140AD3d 1530 [2016], lv denied 28 NY3d [*2]1029 [2016]). Likewise, defendant's claim of ineffectiveassistance of counsel is, to the extent that it impacts the voluntariness of his plea,unpreserved given the absence of a postallocution motion (see People v Lloyd,142 AD3d at 1250; People v Macon, 142 AD3d at 739).
Defendant's claim that the sentence is harsh and excessive is not precluded by hiswaiver of the right to appeal inasmuch as we find that the waiver is invalid due to CountyCourt's failure to explain that this right was separate and distinct from the other rightsthat defendant was forfeiting by pleading guilty (see People v Lopez, 6 NY3d 248, 256 [2006]; People vLloyd, 142 AD3d at 1250). We, nevertheless, find this claim to be unavailing.Defendant has a lengthy criminal record dating back to 2001 and, during such time, hasexhibited a pattern of dangerous and irresponsible behavior. In addition, the sentenceimposed fell within the sentencing parameters to which defendant consented as part ofthe plea agreement and was actually a year less than the court could have imposed.Accordingly, we find no abuse of discretion or any extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see People v Bickford, 140AD3d 1523, 1525 [2016]).
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.