| People v Wright |
| 2017 NY Slip Op 07012 [154 AD3d 1015] |
| October 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edward Wright, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Sandra M. Colatosti of counsel),for appellant.
Jason M. Carusone, Acting District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered December 11, 2015, convicting defendant upon his plea of guilty of the crime ofburglary in the first degree.
Defendant pleaded guilty to the crime of burglary in the first degree in full satisfaction of anine-count indictment and waived the right to appeal. County Court thereafter sentenceddefendant, as a second felony offender, to the agreed-upon sentence of 17
We affirm. Initially, we reject defendant's contention that his waiver of the right to appealwas invalid. County Court distinguished the right to appeal from the rights automaticallyforfeited by a guilty plea, and defendant affirmed his understanding of the ramifications of thewaiver. Defendant thereafter executed a written waiver in open court after discussing the waiverwith counsel. Accordingly, we find that defendant knowingly, intelligently and voluntarilywaived the right to appeal (see People vCaldwell, 148 AD3d 1468, 1468 [2017]; People v Dolberry, 147 AD3d 1149, 1150 [2017], lv denied29 NY3d 1078 [2017]). Defendant's valid appeal waiver precludes his claim that the sentence isharsh and excessive (see People vBartlett, 148 AD3d 1471, 1472 [2017]; People v Golgoski, 145 AD3d 1195, 1196 [2016], lv denied28 NY3d 1184 [2017]).
[*2] Defendant furthercontends that he did not voluntarily enter into the agreement because County Court did notadvise him, prior to his plea, about a potential intoxication defense. While a challenge to thevoluntariness of a plea must generally be preserved by an appropriate postallocution motion,preservation was not required here because "there [was] no practical opportunity to do so prior tosentencing" (People v Rebelo, 137AD3d 1315, 1316 [2016], lv denied 28 NY3d 936 [2016], cert denied 580US &mdash, 137 S Ct 385 [2016]; seePeople v Conceicao, 26 NY3d 375, 381-382 [2015]; People v Sougou, 26 NY3d 1052, 1054 [2015]). The recordreflects, however, that defendant made no statements during the plea allocution that would haveobligated County Court to inquire into a potential intoxication defense prior to accepting his plea(see People v Lopez, 71 NY2d 662, 666 [1988]; People v Maxson, 101 AD3d 1384, 1385-1386 [2012]). Althoughthe pre-plea investigation report indicates that defendant stated to police investigators that he wasunder the influence of crack cocaine on the day of the crime, his responses during the pleacolloquy established that he knowingly entered the victim's home with the intent to commit acrime and, while in the dwelling, he caused physical injuries to the victim (see Penal Law§ 140.30 [2]). Accordingly, County Court properly accepted defendant's plea (see People v Jones, 73 AD3d1386, 1387 [2010]; People vWagoner, 30 AD3d 629, 629-630 [2006]). Finally, although defendant's challenge to theamount of restitution is not precluded by the valid appeal waiver (see People v Ortiz, 148 AD3d1291, 1292 [2017]), it is nevertheless unpreserved for our review in light of his failure torequest a hearing or object to the amount at sentencing (see People v Shannon, 139 AD3d 1250, 1250-1251 [2016], lvdenied 28 NY3d 974 [2016]; Peoplev Williams, 123 AD3d 1374, 1375 [2014], lv denied 25 NY3d 954 [2015]).
Egan Jr., J.P., Lynch and Mulvey, JJ., concur. Ordered that the judgment is affirmed.