| People v Shillabeer |
| 2017 NY Slip Op 07014 [154 AD3d 1017] |
| October 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark A. Shillabeer, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Saratoga County (Sypniewski, J.),rendered July 20, 2015, convicting defendant upon his plea of guilty of the crime of disorderlyconduct.
Defendant had a physical altercation with a police officer during a prisoner exchange. As aresult, he was charged in an indictment with assault in the third degree. Defendant moved todismiss the indictment on the ground that there was insufficient evidence that the officer whowas involved in the altercation sustained physical injury. The motion was denied. Thereafter, insatisfaction of the indictment, defendant pleaded guilty to the reduced charge of disorderlyconduct and waived his right to appeal, both orally and in writing. In accordance with the termsof the plea agreement, he was sentenced to time served. He now appeals.
Defendant challenges the denial of his motion to dismiss the indictment and the voluntarinessof his guilty plea. We note that the former claim, which is not jurisdictional in nature, isprecluded by defendant's guilty plea and waiver of the right to appeal, the latter of whichadequately complied with the requirements of People v Lopez (6 NY3d 248, 256 [2006]; see People v Young, 100 AD3d1186, 1187 [2012], lv denied 21 NY3d 1021 [2013]; People v Smith, 90 AD3d 1148,1149 [2011]). Although defendant is not foreclosed by his waiver of the right to appeal fromcontesting the voluntariness of his guilty plea, this claim has not been preserved for our reviewgiven that the record does not disclose that he made an appropriate postallocution motion (see People v Bonds, 148 AD3d1304, 1305 [2017], lv denied 29 NY3d [*2]1076[2017]; People v Woods, 147 AD3d1156, 1156-1157 [2017], lv denied 29 NY3d 1089 [2017]). Moreover, defendant didnot make any statements during the plea colloquy that cast doubt upon his guilt such as to invokethe narrow exception to the preservation requirement (see People v Bonds, 148 AD3d at1305; People v Woods, 147 AD3d at 1157). Therefore, the judgment must beaffirmed.
Egan Jr., J.P., Lynch and Mulvey, JJ., concur. Ordered that the judgment is affirmed.