| People v Wallace |
| 2017 NY Slip Op 04170 [150 AD3d 1551] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v StephenWallace, Also Known as Spaz, Appellant. |
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered September 19, 2014, convicting defendant upon his plea of guilty of thecrime of attempted assault in the first degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to the reduced charge ofattempted assault in the first degree and waived his right to appeal. He was sentenced, as asecond felony offender, in accordance with the plea agreement to an eight-year prison term,followed by five years of postrelease supervision. Defendant now appeals.
Contrary to defendant's contention, a review of the record establishes that defendantknowingly, voluntarily and intelligently waived his right to appeal. Defendant informed CountyCourt that he was aware of the rights he was giving up by waiving his right to appeal and wasdoing so voluntarily, and he specifically acknowledged that he had previous experience executingappeal waivers. Furthermore, defendant affirmed that he had discussed with his attorney andvoluntarily signed a written waiver, which clarified that it was separate from the rights forfeitedby his guilty plea (see People vRhodes, 143 AD3d 1011, 1011 [2016]; People v Van Clief, 122 AD3d 1062, 1062 [2014], lvdenied 24 NY3d 1221 [2015]). Although defendant's valid appeal waiver does not precludehis challenge to the voluntariness of the plea, such claim is unpreserved because the record doesnot reflect that defendant made any appropriate postallucation motion (see People v Constantopoules, 141AD3d 942, 943 [2016], lv denied 28 NY3d 1027 [2016]; People v McCray, 139 AD3d1235, 1235-1236 [2016]). Finally, any challenge to the agreed-upon sentence as harsh andexcessive is precluded by the valid appeal waiver (see People v McCall, 146 AD3d 1156, 1157 [2017]).
Egan Jr., Rose, Devine and Mulvey, JJ., concur. Ordered that the judgment is affirmed.