| People v Peryea |
| 2019 NY Slip Op 00934 [169 AD3d 1120] |
| February 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JohnPeryea, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), for respondent.
Devine, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered March 3, 2014 inClinton County, convicting defendant upon his plea of guilty of the crime of predatory sexual assaultagainst a child.
Defendant pleaded guilty to a single-count indictment charging him with predatory sexual assaultagainst a child and waived his right to appeal. He was sentenced as a second felony offender, inaccordance with the plea agreement, to a prison term of 15 years to life. Defendant appeals.
We are unpersuaded by defendant's contention that the waiver of the right to appeal is invalid. Therecord reflects that Supreme Court advised defendant during the plea colloquy that a waiver of the rightto appeal was a condition of the plea agreement. The court explained the separate and distinct nature ofthe waiver of the right to appeal, which defendant acknowledged he understood. Even absent a writtenappeal waiver, we find that the oral colloquy was sufficient to establish that defendant knowingly,voluntarily and intelligently waived his right to appeal (see People v Lopez, 6 NY3d 248, 254, 257 [2006]; People v Handly, 122 AD3d 1007,1008 [2014]; People v Smith, 81 AD3d1034, 1035 [2011], lv denied 16 NY3d 899 [2011]). Defendant's challenge to the factualsufficiency of the plea allocution and the severity of the agreed-upon sentence are precluded by thevalid appeal waiver (see People vSullivan, 153 AD3d 1519, 1520 [2017], lv denied 30 NY3d 1064 [2017]; People v Mahon, 148 AD3d 1303,1304 [2017]).
Although defendant's challenges to the voluntariness of the plea and the effective assistance of hiscounsel—to the extent that the latter impacts the voluntariness of the plea—are notprecluded by the appeal waiver, they are nevertheless unpreserved for our review as the record doesnot reflect that defendant made an appropriate postallocution motion (see People v Tyrell, 22 NY3d 359,363-364 [2013]; People v Jawan, 165AD3d 1350, 1351 [2018]). Further, the narrow exception to the preservation requirement is notimplicated here as defendant made no statements during the plea allocution that "clearly cast[ ]significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the plea"(People v Lopez, 71 NY2d 662, 666 [1988]; see People v McDonald, 165 AD3d 1327, 1328 [2018]).
Egan Jr., J.P., Lynch, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.