| People v Tucker |
| 2018 NY Slip Op 02840 [160 AD3d 1303] |
| April 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Patrick Tucker, Appellant. |
Samantha E. Koolen, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered May 4, 2016, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree and waived his right to appeal. In accordance with theterms of the plea agreement, he was sentenced to 3
Initially, we find that defendant validly waived his right to appeal as he was advised of theseparate and distinct nature of the waiver, acknowledged that he understood its consequences andexecuted a comprehensive written waiver in open court after conferring with counsel (see People v Peterkin, 156 AD3d962, 962-963 [2017]; People vWhite, 154 AD3d 1012, 1012-1013 [2017], lv denied 30 NY3d 1065 [2017]).Defendant's challenge to the voluntariness of his guilty plea survives his appeal waiver, but hasnot been preserved for our review as the record does not disclose that he made an appropriatepostallocution motion (see People vRayburn, 150 AD3d 1553, 1554 [2017]; People v Dolberry, 147 AD3d 1149, 1150 [2017], lv denied29 NY3d 1078 [2017]). Furthermore, the narrow exception to the preservation rule isinapplicable as defendant did not make statements that negated his guilt or called into questionthe voluntariness of his plea (see People v Lopez, 71 NY2d 662, 666-667 [1988]; People v Blair, 136 AD3d 1105,1106 [2016], lv denied 27 NY3d 1066 [2016]).
Defendant further contends that he was deprived of the effective assistance of counsel by oneattorney who was assigned to represent him and had a conflict of interest. We are not persuaded.County Court substituted other counsel to represent defendant well before defendant entered hisguilty plea. The attorney's representation was brief, had no direct impact on "the voluntariness ofdefendant's subsequent plea" and is therefore precluded by defendant's appeal waiver (People v Santos-Rivera, 86 AD3d790, 791 [2011], lv denied 17 NY3d 904 [2011]; see People v Trombley, 91 AD3d 1197, 1201 [2012], lvdenied 21 NY3d 914 [2013]). Lastly, defendant's challenge to the severity of the sentence isforeclosed by his valid waiver of the right to appeal (see People v Nichols, 155 AD3d 1186, 1187 [2017]; People vBlair, 136 AD3d at 1106). In view of the foregoing, we affirm the judgment ofconviction.
Garry, P.J., Egan Jr., Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.