| People v Quell |
| 2018 NY Slip Op 08201 [166 AD3d 1388] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Raymond J. Quell, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered December 18, 2015, convicting defendant upon his plea ofguilty of the crime of grand larceny in the fourth degree.
In November 2015, defendant waived indictment and agreed to be prosecutedpursuant to a superior court information charging him with one count of grand larceny inthe fourth degree. The charge arose out of allegations that, in the early morning hours ofApril 30, 2015, defendant approached a woman inside of a convenience store andgrabbed and stole $40 from her right hand. Pursuant to a plea agreement, defendantpleaded guilty to grand larceny in the fourth degree and executed a written waiver ofappeal in open court. In accordance with the terms of the plea agreement, County Courtthereafter sentenced defendant, as a second felony offender, to a prison term of1
Defendant's sole contentions on appeal are that his combined oral and written waiverof appeal is invalid because County Court failed to advise him of the separate anddistinct nature of his right to appeal and that his guilty plea was not knowing, voluntaryand intelligent because it was coerced. As an initial matter, whether defendant'scombined oral and written waiver of appeal was knowing, voluntary and intelligent is ofno consequence because defendant's challenge to the voluntariness of his guilty pleasurvives a valid waiver of the right to appeal (see People v Tucker, 164 AD3d 948, 950 [2018]; People v Howe, 150 AD3d1321, 1322-1323 [2017]). However, although defendant's challenge to thevoluntariness of his plea survives a valid waiver of the right to appeal, his claim has notbeen preserved for our review as the record does not reflect that he made an appropriatepostallocution motion (see CPL 220.60 [3]; People v Guidry, 158 AD3d 901, 902 [2018]; People v Williams, 155 AD3d1253, 1254 [2017], lv denied 31 NY3d 1089 [2018]). Moreover, defendant'sreliance upon his unsworn statements contained within a postplea letter sent to CountyCourt prior to sentencing, which contradicted his sworn plea allocution, is unavailing, assaid letter neither properly preserved this issue for appeal nor [*2]constituted a motion to withdraw his guilty plea (see People v Willard, 159AD3d 1228, 1229 [2018], lv denied 31 NY3d 1154 [2018]; People v Rayburn, 150 AD3d1553, 1554-1555, 1555 n [2017]). Moreover, the narrow exception to thepreservation rule is inapplicable as defendant did not make any statements during theplea colloquy or sentencing proceeding that cast doubt upon his guilt, negated an elementof the crime or called into question the voluntariness of his plea (see People v Pastor, 28 NY3d1089, 1090-1091 [2016]; People v Lopez, 71 NY2d 662, 666 [1988];People v Tucker, 164 AD3d at 950; People v Mathayo, 155 AD3d 1090, 1091 [2017], lvdenied 30 NY3d 1107 [2018]).
Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.