| People v Allen |
| 2018 NY Slip Op 07775 [166 AD3d 1210] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1](November 15, 2018)
| The People of the State of New York,Respondent, v Anthony Allen, Also Known as Lucky,Appellant. |
Jacob A. Vredenburgh, Wynantskill, for appellant.
P. David Soares, District Attorney, Albany (Noel Mendez of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered September 3, 2015, convicting defendant upon his plea of guilty of thecrime of criminal sale of a controlled substance in the third degree.
In full satisfaction of a nine-count indictment, defendant agreed to plead guilty to onecount of criminal sale of a controlled substance in the third degree and to waive his rightto appeal in exchange for a prison term of 5
We affirm. Although defendant's challenge to the voluntariness of his plea surviveshis unchallenged waiver of the right to appeal, this issue is unpreserved for our review inthe absence of an appropriate postallocution motion (see People v Williams, 163 AD3d 1172, 1173 [2018],lv denied 32 NY3d 1009 [2018]; People v Edwards, 160 AD3d 1280, 1281 [2018], lvdenied 31 NY3d 1147 [2018]; People v Widger, 160 AD3d 1297, 1297 [2018]).Defendant's ineffective assistance of counsel claim—to the extent that it impactsupon the voluntariness of his plea—is similarly unpreserved (see People v Reap, 163 AD3d1287, 1289 [2018]; Peoplev Burks, 163 AD3d 1286, 1287 [2018]; People v Duggins, 161 AD3d 1445, 1446 [2018], lvdenied 32 NY3d 937 [2018]). Contrary to defendant's assertion, nothing on the faceof the plea colloquy, wherein defendant expressly confirmed that he had discussedpossible defenses to the charged crime with counsel, cast doubt upon his guilt orotherwise called into question the voluntariness of his plea (see People v Bailey, 158 AD3d948, 948 [2018]; People vHopper, 153 AD3d 1045, 1046-1047 [2017], lv denied 30 NY3d 1061[2017]). To the extent that defendant asserted that "he was under the influence of weedduring the course of the [subject] offense," this claim "was articulated for the first timeduring his presentence interview with the Probation Department, and County Court wasunder no obligation to conduct any further inquiry in [*2]response to this belated, postplea assertion" (People vBailey, 158 AD3d at 949; see People v Hopper, 153 AD3d at 1047). Finally,defendant's challenge to the severity of the agreed-upon sentence imposed is precludedby his unchallenged appeal waiver (see People v Blackburn, 164 AD3d 960, 962 [2018]).
Egan Jr., J.P., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.