| People v Taft |
| 2019 NY Slip Op 01457 [169 AD3d 1266] |
| February 28, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v PhilipM. Taft, Appellant. |
Harvey C. Silverstein, Latham, for appellant, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt Jr. of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedNovember 19, 2015, convicting defendant upon his plea of guilty of the crime of robbery in the firstdegree.
In satisfaction of a three-count indictment stemming from defendant allegedly robbing aconvenience store at knife point, defendant pleaded guilty to robbery in the first degree and waived hisright to appeal. County Court sentenced defendant to a prison term of 10 years followed by five yearsof postrelease supervision and imposed restitution in the amount of $3,500. Defendant appeals.
Initially, the record reflects that the waiver of the right to appeal was knowing, voluntary andintelligent. Although terse, County Court advised defendant in the plea colloquy that the waiver of theright to appeal was separate and distinct from the rights forfeited by the guilty plea; defendantacknowledged that this had been explained by defense counsel and that he understood. Defendantfurther affirmed his knowing, voluntary, and intelligent waiver of his right to appeal in a written waiverthat he executed with his counsel. In view of the foregoing, we find that the waiver of the right to appealis valid (see People v Sanders, 25 NY3d337, 339-341 [2015]; People vLopez, 6 NY3d 248, 256 [2006]; People v Muller, 166 AD3d 1240, 1241 [2018]). Accordingly,defendant's challenge to the sentence as harsh and excessive is precluded (see People vSanders, 25 NY3d at 339-341; People vNieves, 163 AD3d 1359, 1360 [2018], lv denied 32 NY3d 1006 [2018]).
Defendant's challenge to the voluntariness of the plea is not precluded by the appeal waiver, but isnevertheless unpreserved for our review as the record does not reflect that defendant made anappropriate postallocution motion, which, contrary to defendant's contention, he had a reasonableopportunity to do (see People v Williams,27 NY3d 212, 214 [2016]; People vNorton, 164 AD3d 1502, 1503 [2018], lv denied 32 NY3d 1114 [2018]; People v Blackburn, 164 AD3d 960,961 [2018]). Further, the narrow exception to the preservation requirement does not apply, asdefendant made no statements during the plea proceeding that cast doubt upon his guilt or otherwisecalled into question the voluntariness of his plea (see People v Lopez, 71 NY2d 662, 666[1988]; People v Norton, 164 AD3d at 1503). To the extent that defendant's ineffectiveassistance of counsel claim impacts the voluntariness of his plea, it survives the valid appeal waiver butis likewise unpreserved for review (see People v Norton, 164 AD3d at 1503). Were we toconsider the issues, we would find them to be without merit, as the record fails to establish thatdefendant's mental health issues interfered with his ability to understand the proceedings or impacted thevoluntary nature of his plea (see People vDuffy, 126 AD3d 1142, 1142-1143 [2015]; People v Chavis, 117 AD3d 1193, 1194 [2014]).
Defendant's challenge to the amount of restitution ordered is not precluded by the appeal waiver,as the amount was not specifically set forth in the plea agreement (see People v Mahon, 148 AD3d 1303, 1304 [2017]). Nevertheless, theissue is unpreserved, as defendant did not contest the amount of restitution imposed at sentencing norrequest a restitution hearing (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Wright, 154 AD3d 1015,1016 [2017], lv denied 30 NY3d 1065 [2017]; People v Mahon, 148 AD3d at1304).
Clark, Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.