| People v McRae |
| 2017 NY Slip Op 03567 [150 AD3d 1328] |
| May 4, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Willie McRae, Appellant. |
Dennis J. Lamb, Troy, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered December 9, 2013, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.
Pursuant to a negotiated plea agreement, and in full satisfaction of a two-count indictmentand other then-pending charges, defendant pleaded guilty to attempted criminal sale of acontrolled substance in the third degree and executed a written waiver of appeal in open court.Consistent with the terms of the plea agreement, County Court imposed upon defendant, as anonviolent predicate felony offender, a prison sentence of seven years to be followed by threeyears of postrelease supervision. Defendant now appeals.
We affirm. Initially, we find that defendant's oral and written waiver of appeal was knowing,voluntary and intelligent (see People vSanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]). The record reflects thatCounty Court distinguished the right to appeal as "separate and apart" from the rightsautomatically forfeited by a guilty plea, and defendant acknowledged that he signed andunderstood the written appeal waiver after reviewing it and conferring with counsel regarding itscontents (see People v Hall, 147AD3d 1151, 1151 [2017]; People vDolberry, 147 AD3d 1149, 1150 [2017]). While defendant's challenge to thevoluntariness of his plea survives the appeal waiver, this claim was not preserved by anappropriate postallocution motion (seePeople v Smith, 121 AD3d 1131, 1132 [2014], lv denied 24 NY3d 1123 [2015];People v Waite, 120 AD3d1446, 1447 [2014]), and defendant made no [*2]statementsduring the plea colloquy that triggered the narrow exception to the preservation requirement (see People v Williams, 27 NY3d212, 219-220 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]; People v Austin, 141 AD3d 956,957 [2016]).
Defendant's claim that the sentence was harsh and excessive is foreclosed by the valid appealwaiver (see People v Macon, 142AD3d 739, 739 [2016], lv denied 28 NY3d 1073 [2016]; People v Rushlow, 137 AD3d1482, 1483 [2016]), which includes his "right to invoke [this Court's] interest-of-justicejurisdiction to reduce the sentence" (People v Bethea, 133 AD3d 1033, 1033 [2015] [internal quotationmarks and citations omitted], lv denied 27 NY3d 992 [2016]). To the extent thatdefendant raises a claim regarding what counsel investigated or discussed with him, this concernsa matter that is outside the record on appeal and is more properly suited for a CPL article 440motion (see People v Daniels, 139AD3d 1256, 1257 [2016], lv denied 28 NY3d 1183 [2017]; People v Taylor, 135 AD3d 1237,1238 [2016], lv denied 27 NY3d 1075 [2016]).
Peters, P.J., Garry, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.