| People v Robinson |
| 2017 NY Slip Op 08050 [155 AD3d 1252] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tammy Robinson, Appellant. |
Craig S. Leeds, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered August 28,2015 in Schenectady County, convicting defendant upon her plea of guilty of the crime of grandlarceny in the third degree.
In October 2014, defendant was indicted for grand larceny in the third degree, falsifyingbusiness records in the first degree and offering a false instrument for filing in the first degreebased on allegations that included that she stole property valued at more than $3,000. As a part ofa plea agreement and in satisfaction of the indictment, defendant pleaded guilty to grand larcenyin the third degree and waived her right to appeal, orally and in writing. Defendant was thereaftersentenced to six months in jail and a five-year term of probation. Defendant appeals.
We affirm. The combined oral and written appeal waiver establishes that defendant's waiverwas knowing, voluntary and intelligent (see People v Sanders, 25 NY3d 337, 341 [2015]; People v Lopez, 6 NY3d 248, 256[2006]). Supreme Court confirmed that defendant knew that her waiver of her right to appeal was"separate and apart" from the trial rights that she had agreed to waive. Defendant asked the courtwhether the appeal waiver would apply to a pending civil matter, and the court correctlyinformed her that it would not. Defendant thereafter told the court that she had no more questionsregarding the appeal waiver. Moreover, the record reflects that defendant conferred with counselregarding the written appeal waiver before she signed it, and defendant was informed that herappeal waiver was a condition of her plea agreement and that, [*2]absent her waiver of her right to appeal, she would have maintainedthe right to appeal from a conviction resulting from a plea. Accordingly, we find defendant'sappeal waiver to be knowing, voluntary and intelligent (see People v Toledo, 144 AD3d 1332, 1332 [2016], lvdenied 29 NY3d 1001 [2017]; People v Empey, 144 AD3d 1201, 1202-1203 [2016], lvdenied 28 NY3d 1144 [2017]).
Defendant's challenge to the factual sufficiency of her plea allocution is precluded by hervalid appeal waiver (see People vBlair, 140 AD3d 1478, 1479 [2016], lv denied 28 NY3d 927 [2016]; People v Love, 137 AD3d 1486,1487 [2016]). Moreover, that issue is unpreserved as the record fails to establish that defendantmade an appropriate postallocution motion, and the narrow exception to the preservationrequirement does not apply here as defendant did not make any statements that negated anessential element of the crime or cast doubt upon her guilt (see People v Agrusti, 123 AD3d 1158, 1158 [2014], lvdenied 26 NY3d 1142 [2016]; People v Watson, 115 AD3d 1016, 1017 [2014], lv denied24 NY3d 965 [2014]). Likewise, defendant's claim of ineffective assistance of counsel, to theextent that it relates to the voluntariness of her plea, is unpreserved in the absence of apostallocution motion (see People vWilliams, 150 AD3d 1549, 1549 [2017]; People v Cox, 146 AD3d 1154, 1155 [2017]). To the extent thatdefendant contends, in her pro se brief, that she was deprived of due process by preindictmentdelay, that contention is also unpreserved for our review (see People v Flores, 83 AD3d 1460, 1460 [2011], affd 19NY3d 881 [2012]; People v Alger,23 AD3d 706, 706 [2005], lv denied 6 NY3d 845 [2006]).
Egan Jr., J.P., Lynch, Rose and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.