| People v Mais |
| 2019 NY Slip Op 00005 [168 AD3d 1142] |
| January 3, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Everrod Mais, Also Known as Dizz, Also Known as Mitch, Also Knownas YB, Also Known as Youngblood, Appellant. |
Matthew A. Toporowski, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered September15, 2016 in Schenectady County, convicting defendant upon his plea of guilty of the crimes ofcriminal sale of a controlled substance in the third degree and criminal possession of a weapon inthe second degree.
In full satisfaction of two indictments charging him with various crimes, defendant pleadedguilty to criminal sale of a controlled substance in the third degree and criminal possession of aweapon in the second degree and waived his right to appeal. Supreme Court thereafter sentenceddefendant to the agreed-upon aggregate prison term of eight years, to be followed by three yearsof postrelease supervision. Defendant appeals, and we affirm.
Defendant claims that his guilty plea and waiver of the right to appeal were involuntary dueto the effects from the prescription sleep aid that he had consumed the night prior to entering theplea and executing the appeal waiver. Initially, we reject defendant's contention that his waiver ofappeal was involuntary. Although defendant had previously taken the prescription medication,the transcript of his plea allocution demonstrated that he was lucid, rational and able tounderstand the consequences of his actions (see People v Carbone, 101 AD3d 1232, 1234 n [2012]; People v Riley, 97 AD3d 982, 983[2012], lv denied 20 NY3d 935 [2012]; People v Gomez, 72 AD3d 1337, 1338 [2010]).
Defendant's challenge to the voluntariness of his guilty plea survives his valid appeal waiverbut was not preserved for our review as the record does not disclose that he made an appropriatepostallocution motion (see People vMilligan, 165 AD3d 1347, 1347 [2018]; People v Sumter, 157 AD3d 1125, 1125 [2018]). Moreover, thenarrow exception to the preservation rule is inapplicable because defendant did not make anystatements during the plea colloquy that were inconsistent with his guilt (see People vMilligan, 165 AD3d at 1347; People v Sumter, 157 AD3d at 1126). Finally, althoughdefendant's ineffective assistance of counsel claim survives the appeal waiver to the extent that itimplicates the voluntariness of his plea, the absence of an appropriate postallocution motionrenders it unpreserved for our review (see People v Sumter, 157 AD3d at 1126; People v Baxter, 154 AD3d 1010,1011 [2017]).
Garry, P.J., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.