| People v Harrington |
| 2018 NY Slip Op 06828 [165 AD3d 1342] |
| October 11, 2018 |
| Appellate Division, Third Department |
[*1](October 11, 2018)
| The People of the State of New York,Respondent, v Daniel Harrington, Also Known as Ace,Appellant. |
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Lynch, J.
Appeal from a judgment of the Supreme Court (Milano, J.),rendered May 15, 2015 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
In full satisfaction of an indictment charging him with various crimes, defendant pleadedguilty to criminal possession of a controlled substance in the third degree and executed a waiverof the right to appeal. Consistent with the terms of the plea agreement, defendant wassubsequently sentenced, as a second felony drug offender, to a prison term of four years to befollowed by two years of postrelease supervision. Defendant appeals.
We affirm. Initially, we reject defendant's claim that his waiver of the right to appeal wasinvalid. County Court explained that the right to appeal was separate and distinct from the rightsautomatically forfeited by a guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Hess, 150 AD3d 1560,1560 [2017]), and the record further reflects that defendant executed a detailed written appealwaiver and acknowledged that he had discussed the waiver with counsel and understood it (see People v Rutigliano, 159 AD3d1280, 1280 [2018], lv denied 31 NY3d 1121 [2018]; People v Simmons, 159 AD3d1270, 1271 [2018]). Accordingly, we find that defendant's combined oral and written waiverof appeal was knowing, intelligent and voluntary (see People v Wood, 161 AD3d 1447, 1448 [2018]; People v Baxter, 154 AD3d 1010,1011 [2017]).
Defendant's contention that his plea was coerced or involuntary because of his incarcerationand inability to obtain bail survives his valid appeal waiver but is not preserved for our review, asthere is no indication in the record that he made an appropriate postallocution motion (see People v McRae, 150 AD3d1328, 1329 [2017], lv denied 29 NY3d 1093 [2017]; [*2]Peoplev Rich, 10 AD3d 739, 740 [2004]). Moreover, the narrow exception to the preservationrule is inapplicable as defendant's "recitation of the facts underlying the crime pleaded to" did not"cast[ ] significant doubt upon . . . defendant's guilt or otherwise call[ ] into questionthe voluntariness of the plea" (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Dolberry, 147 AD3d1149, 1150 [2017], lv denied 29 NY3d 1078 [2017]). The transcript of the pleaproceedings reflects that defendant was advised of the consequences of pleading guilty, that heunderstood those consequences and that he was not threatened, forced or coerced in any way toplead guilty and was "pleading guilty under [his] own decision." Furthermore, defendant nevermentioned or gave any indication that his incarceration during the pendency of these proceedingsor his failed attempt to obtain bail were factors that affected or influenced his decision to pleadguilty (see People v Zabawczuk,128 AD3d 1267, 1268 [2015], lv denied 26 NY3d 937 [2015]; People vRich, 10 AD3d at 740; comparePeople v Grant, 61 AD3d 177, 182-184 [2009]). Accordingly, there is no basis in therecord before us to disturb the judgment of conviction.
Garry, P.J., McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.