| People v Welden |
| 2017 NY Slip Op 09201 [156 AD3d 1241] |
| December 28, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark J. Welden, 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 (Scarano, J.),rendered September 4, 2014, convicting defendant upon his plea of guilty of the crime ofaggravated driving while intoxicated with a child.
In satisfaction of an eight-count indictment and other pending charges, defendant pleadedguilty to aggravated driving while intoxicated with a child and waived his right to appeal. He wassentenced, in accordance with the terms of the plea agreement, to a prison term of 1 to 3 years tobe followed by a three-year conditional discharge that required him to install an interlock ignitiondevice. Defendant appeals.
We affirm. Initially, we note that the waiver of the right to appeal was valid inasmuch as therecord reflects that County Court distinguished the right to appeal as separate and distinct fromthe rights automatically forfeited by the guilty plea and defendant acknowledged that, afterconferring with counsel, he understood and executed the written waiver of appeal. In view of thevalid appeal waiver, defendant's challenge to the sufficiency of the plea allocution is foreclosed(see People v Sullivan, 153 AD3d1519, 1519 [2017]; People vMahon, 148 AD3d 1303, 1304 [2017]). Defendant's challenge to the voluntariness of hisplea, although not precluded by the appeal waiver, is unpreserved for our review inasmuch as therecord does not reflect that defendant made an appropriate postallocution motion to withdraw hisguilty plea. Nor did defendant make any statements during the plea colloquy to warrant theapplication of the narrow [*2]exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Hopper, 153 AD3d 1045,1046 [2017]; People v Williams,150 AD3d 1549, 1550 [2017]). Were we to consider defendant's contention, we would findthat the record establishes that his plea was knowingly, voluntarily and intelligently entered (see People v Conceicao, 26 NY3d375, 383 [2015]).
Egan Jr., J.P., Devine, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.