People v Rivera

2018 NY Slip Op 08969 [167 AD3d 1324]

December 27, 2018

Appellate Division, Third Department

As corrected through Wednesday, January 30, 2018

[*1](December 27, 2018)

The People of the State of New York,Respondent, v Miguel Rivera, Appellant.

Michael C. Ross, Bloomingburg, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Rumsey, J. Appeal from a judgment of the County Court of Albany County (Ceresia, J.),rendered April 6, 2015, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a controlled substance in the third degree.

In August 2014, defendant was indicted and charged with two counts of criminal possessionof a controlled substance in the third degree and two counts of criminally using drugparaphernalia in the second degree. Defendant thereafter agreed to plead guilty to the reducedcharge of attempted criminal possession of a controlled substance in the third degree with theunderstanding that he would be sentenced as a predicate felon to a prison term of41/2 years followed by three years of postrelease supervision. The plea agreement,which satisfied both the foregoing indictment and other charges that had been presented to agrand jury, also included a waiver of the right to appeal. Following defendant's plea of guilty tothe reduced charge, County Court imposed the agreed-upon term of imprisonment. Defendantappeals.

Regardless of the validity of defendant's appeal waiver, his challenge to the voluntariness andfactual sufficiency of his plea is unpreserved for our review in the absence of an appropriatepostallocution motion (see People vRivera, 164 AD3d 1573, 1574-1575 [2018]; People v Guynup, 159 AD3d 1223, 1224 [2018], lv denied31 NY3d 1082 [2018]; People vSpears, 78 AD3d 1380, 1380 [2010]). Defendant did not make any statements during theplea allocution that negated an element of the charged crime, were inconsistent with his guilt orotherwise called into question the voluntariness of his plea; therefore, the narrow exception to thepreservation requirement was not triggered (see People v Bailey, 158 AD3d 948, 948 [2018]). Further, CountyCourt was under no obligation to conduct any inquiry in response to defendant's belated postpleastatements to the Probation Department regarding the voluntariness of his plea (see id. at948).

Devine, J.P., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.