| People v Smith |
| 2018 NY Slip Op 00196 [157 AD3d 1059] |
| January 11, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v VirgilioSmith, Appellant. |
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Michael Sardo, Law Intern), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered June 26, 2015, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the third degree.
Defendant was charged in a six-count indictment with various weapons- and drug-relatedcrimes. In full satisfaction thereof, defendant pleaded guilty to the reduced charge of attemptedcriminal possession of a weapon in the third degree and executed a written waiver of the right toappeal. Consistent with the terms of the plea agreement, defendant thereafter was sentenced to aprison term of three years followed by two years of postrelease supervision. Defendant nowappeals.
We affirm. Contrary to defendant's assertion, the record establishes that defendant'scombined oral and written waiver of the right to appeal was knowing, intelligent and voluntary(see People v Sanders, 25 NY3d337, 339-341 [2015]; People vPixley, 150 AD3d 1555, 1556-1557 [2017], lv denied 30 NY3d 952 [2017]).Defendant was apprised that a waiver of the right to appeal was a condition of the plea agreement(see People v Bateman, 151 AD3d1482, 1483 [2017]) and, during the ensuing colloquy, County Court explained thatdefendant's right to appeal was separate and distinct from those trial-related rights automaticallyforfeited by his guilty plea (see People vLopez, 6 NY3d 248, 256 [2006]; People v Lambert, 151 AD3d 1119, 1119 [2017], lv denied29 NY3d 1092 [2017]). Defendant, in turn, orally confirmed his understanding of the waiver andthereafter executed a detailed written waiver of appeal. He acknowledged that he had [*2]reviewed the waiver with counsel, indicating that he had noquestions relative thereto, and again confirmed his understanding of the waiver (see People vLambert, 151 AD3d at 1119; Peoplev Tulip, 150 AD3d 1564, 1565 [2017]). "As defendant's full appreciation of theconsequences and understanding of the terms and conditions of the plea, including a waiver ofthe right to appeal, are apparent on the face of the record, we find that his waiver of appeal wasmade knowingly, intelligently and voluntarily" (People v Bateman, 151 AD3d at 1483[internal quotation marks and citations omitted]; see People v Lester, 141 AD3d 951, 952 [2016], lv denied28 NY3d 1185 [2017]).
Defendant's further challenge to the voluntariness of his plea survives the valid appeal waiverbut is unpreserved for our review in the absence of an appropriate postallocution motion (see People v Bonds, 148 AD3d1304, 1305 [2017], lv denied 29 NY3d 1076 [2017]; People v Dolberry, 147 AD3d1149, 1150 [2017], lv denied 29 NY3d 1078 [2017]). Additionally, inasmuch as areview of the plea colloquy reveals that defendant did not make any statements that wereinconsistent with his guilt or otherwise called into question the voluntariness of his plea, thenarrow exception to the preservation doctrine has not been triggered (see People v Millard, 147 AD3d1155, 1156 [2017], lv denied 29 NY3d 999 [2017]; People v Oddy, 144 AD3d 1322,1323-1324 [2016], lv denied 29 NY3d 1131 [2017]).
McCarthy, J.P., Egan Jr., Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.