| People v Haverly |
| 2018 NY Slip Op 03875 [161 AD3d 1483] |
| May 31, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Timothy Haverly, Appellant. |
Craig S. Leeds, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered July 24, 2015, convicting defendant upon his plea of guilty of the crimes of attempteddisseminating indecent material to minors in the first degree and possessing a sexual performanceby a child.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation (hereinafter SCI) charging him with attempted disseminating indecent material tominors in the first degree (count 1) and possessing a sexual performance by a child (count 2). Aspart of the plea agreement, defendant, who was facing additional charges in another state, wasrequired to waive his right to appeal. In exchange for his guilty plea, defendant would besentenced to a prison term of four years followed by 10 years of postrelease supervision undercount 1 of the SCI and a prison term of 1 to 3 years under count 2 of the SCI—said termsto run concurrently; additionally, defendant would not be prosecuted on the out-of-state charges.Following defendant's guilty plea, County Court imposed the agreed-upon terms ofimprisonment. Defendant appeals.
We affirm. Defendant's challenge to the factual sufficiency of his plea is precluded by hisvalid and unchallenged waiver of the right to appeal (see People v Robinson, 155 AD3d 1252, 1253 [2017], lvdenied 30 NY3d 1119 [2018]; People v Smith, 155 AD3d 1244, 1245 [2017]) and, further, isunpreserved for our review in the absence of an appropriate postallocution motion (see People v Rodriguez, 154 AD3d1013, 1014 [2017]; People v Dejesus, [*2]146 AD3d1077, 1078 [2017]). To the extent that defendant's brief may be read as contesting thevoluntariness of the plea itself, as well as defendant's ineffective assistance of counsel claim (tothe degree that it impacts upon the voluntariness of his plea), such claims—although theysurvive a valid appeal waiver—are similarly unpreserved for our review (see People v Sumter, 157 AD3d1125, 1125-1126 [2018]; People vEvans, 156 AD3d 1246, 1246-1247 [2017]). Contrary to defendant's assertion, thenarrow exception to the preservation requirement was not triggered here, as he did not make anystatements during the plea colloquy that either negated an essential element of the crime orotherwise called into question his guilt (see People v Evans, 156 AD3d at 1247). Finally,defendant's challenge to the agreed-upon sentence imposed is precluded by his waiver of appeal(see People v Brothers, 155 AD3d1257, 1258 [2017]).
Egan Jr., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment is affirmed.