| People v Johnson |
| 2019 NY Slip Op 01678 [170 AD3d 1274] |
| March 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jerome Johnson, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Rumsey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered December 15, 2016, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the second degree.
In November 2015, defendant was indicted and charged with one count of criminalpossession of a weapon in the second degree. Following the denial of his suppression motion,defendant agreed to plead guilty to the reduced charge of attempted criminal possession of aweapon in the second degree with the understanding that he would be sentenced to a prison termof three years followed by three years of postrelease supervision. The plea agreement alsoincluded a waiver of defendant's right to appeal. Defendant thereafter pleaded guilty inconformity with the plea agreement and was sentenced to the agreed-upon term of imprisonment.Defendant appeals.
We affirm. Initially, we reject defendant's contention that his waiver of the right to appealwas invalid. County Court apprised defendant of the trial-related rights that are automaticallyforfeited by a guilty plea and then advised him that, although he would ordinarily retain the rightto appeal, the plea agreement required a waiver of his right to appeal the denial of hissuppression motion, his conviction and his sentence (see People v Carter, 166 AD3d 1212, 1213 [2018]; People v Hogabone, 49 AD3d1027, 1028 [2008], lv denied 10 NY3d 935 [2008]). The record further reflects thatdefendant, after conferring with counsel, signed a written waiver in open court and, in responseto County Court's questioning, confirmed that he understood its terms and agreed to be bound byit (see People v Brown, 163 AD3d1269, 1270 [2018]; People vTurner, 158 AD3d 892, 892 [2018]; People v McCaskill, 76 AD3d 751, 752 [2010]; People v Romano, 45 AD3d 910,914-915 [2007], lv denied 10 NY3d 770 [2008]).
Although defendant's challenge to the voluntariness of his plea survives his valid appealwaiver, this issue is unpreserved for our review in the absence of an appropriate postallocutionmotion, and the narrow exception to the preservation requirement is inapplicable becausedefendant did not make any statements during the plea colloquy that cast doubt upon his guilt orcalled the voluntariness of his plea into question (see People v Norton, 164 AD3d 1502, 1503 [2018], lvdenied 32 NY3d 1114 [2018]). Although his ineffective assistance of counsel claim surviveshis valid appeal waiver to the limited extent that it impacts upon the voluntariness of his plea,this issue is also unpreserved for our review due to defendant's failure to move to withdraw hisplea (see id. at 1503). Finally, defendant's valid appeal waiver precludes his challenge tothe severity of his sentence (see People v Carter, 166 AD3d at 1213).
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ. concur. Ordered that the judgment isaffirmed.