People v Allen

2018 NY Slip Op 06832 [165 AD3d 1348]

October 11, 2018

Appellate Division, Third Department

As corrected through Wednesday, November 28, 2018

[*1]

The People of the State of New York,Respondent, v Andre R. Allen, Appellant.

Brian M. Quinn, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Mary Theresa Northrup of counsel), forrespondent.

Devine, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),entered December 2, 2016, convicting defendant upon his plea of guilty of the crime of rape inthe third degree.

Defendant waived indictment and pleaded guilty to a superior court information charginghim with rape in the third degree, stemming from him engaging in sexual intercourse with a15-year-old girl when he was 28 years old. Pursuant to the terms of the plea agreement, defendantwaived his right to appeal orally and in writing. County Court, in turn, agreed to impose a prisonsentence of 21/2 years to be followed by a term of postrelease supervision(hereinafter PRS) of between 3 and 10 years. The court thereafter imposed a prison sentence of21/2 years with 10 years of PRS, and defendant now appeals.

We affirm. Initially, defendant's challenge to the agreed-upon sentence as harsh andexcessive is precluded by his unchallenged and valid appeal waiver (see People v Lopez, 6 NY3d 248,256 [2006]; People v Hakkenberg,142 AD3d 1251, 1252 [2016], lv denied 28 NY3d 1072 [2016]). Defendant alsoargues that his guilty plea was not knowing, voluntary and intelligent in that County Court failedto adequately advise him during the plea allocution regarding PRS, but he failed to preserve thisargument by an appropriate postallocution motion despite having had ample opportunity to do soprior to sentencing (see People vWilliams, 27 NY3d 212, 221-222 [2016]; People v Crowder, 24 NY3d 1134, 1136 [2015]; People v Jones, 146 AD3d 1078,1080 [2017], lv denied 29 NY3d 999 [2017]; cf. People v Bolivar, 118 AD3d 91, 93 [2014]). In any event, therecord demonstrates that defendant was made aware of the PRS component of his sentence andits potential length during the plea colloquy.

[*2] To theextent that defendant contends that County Court was also required to advise him of the specificconditions of his PRS and the ramifications of violating them, this claim is also unpreserved and,moreover, incorrect (see People vMonk, 21 NY3d 27, 32-33 [2013]; People v Hernandez, 140 AD3d 1521, 1523 [2016], lvdenied 28 NY3d 971 [2016]).

McCarthy, J.P., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.