People v Letohic

2018 NY Slip Op 07784 [166 AD3d 1223]

November 15, 2018

Appellate Division, Third Department

As corrected through Wednesday, January 2, 2018

[*1]

The People of the State of New York,Respondent, v James Letohic, Appellant.

Jack H. Weiner, New York City, for appellant.

James R. Farrell, District Attorney, Monticello (Kristin L. Hackett of counsel), forrespondent.

Mulvey, J. Appeal from a judgment of the County Court of Sullivan County(McGuire, J.), rendered January 20, 2016, convicting defendant upon his plea of guilty ofthe crimes of robbery in the first degree and burglary in the second degree.

Defendant pleaded guilty to robbery in the first degree and burglary in the seconddegree in full satisfaction of a six-count indictment and waived the right to appeal.County Court thereafter sentenced defendant to an aggregate prison term of111/2 years, to be followed by five years of postrelease supervision.Defendant now appeals.

We affirm. Defendant's challenge to the factual sufficiency of his plea allocution isprecluded by his valid and unchallenged appeal waiver (see People v Haverly, 161AD3d 1483, 1484 [2018], lv denied 32 NY3d 938 [2018]; People v Robinson, 155 AD3d1252, 1253 [2017], lv denied 30 NY3d 1119 [2018]). Defendant's claim ofineffective assistance of counsel—insofar as it implicates the voluntariness of hisplea—survives his appeal waiver but is unpreserved for our review, as the recorddoes not reflect that he made an appropriate postallocution motion (see People v Duggins, 161AD3d 1445, 1446 [2018], lv denied 32 NY3d 937 [2018]; People v Park, 159 AD3d1132, 1134 [2018], lv denied 31 NY3d 1085 [2018]). Moreover, defendantdid not make any statements during the plea colloquy that would trigger the narrowexception to the preservation rule (see People v Thomas, 153 AD3d 1445, 1446 [2017], lvdenied 30 NY3d 1064 [2017]; People v Lewis, 143 AD3d 1183, 1185 [2016]).

McCarthy, J.P., Devine, Rumsey and Pritzker, JJ., concur. Ordered that the judgmentis affirmed.