People v Harrington

2019 NY Slip Op 01857 [170 AD3d 1338]

March 14, 2019

Appellate Division, Third Department

As corrected through Wednesday, May 1, 2019

[*1]

The People of the State of New York,Respondent, v Nathan Harrington, Appellant.

Matthew A. Toporowksi, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.

Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered May 4,2017, which revoked defendant's probation and imposed a sentence of imprisonment.

In March 2016, defendant pleaded guilty to two counts of attempted sexual abuse in the firstdegree and was sentenced to two 10-year terms of probation, said terms to run concurrently.Defendant's probation was subject to various conditions, including that he refrain from using,possessing or viewing pornography. After a routine search of defendant's cell phone disclosedmultiple pornographic images, defendant was charged with violating his probation. In March2017, defendant admitted to violating his probation, and County Court thereafter revokeddefendant's probation and sentenced him to concurrent prison terms of 21/2 yearsfollowed by 10 years of postrelease supervision. Defendant now appeals.

We affirm. To the extent that defendant's brief may be read as challenging the voluntarinessof his guilty plea to the probation violation, this argument is unpreserved for our review in theabsence of an appropriate postallocution motion (see People v Shaw, 157 AD3d 1138, 1140 [2018]; People v Sumter, 157 AD3d 1125,1125 [2018]; People v Peterson, 147AD3d 1148, 1149 [2017]). Further, as defendant did not make any statements during theplea colloquy that were inconsistent with his guilt or otherwise called into question thevoluntariness of his plea, the narrow exception to the preservation requirement was not triggered(see People v Sumter, 157 AD3d at 1126; People v Woodard, 139 AD3d 1238, 1238-1239 [2016], lvdenied 28 NY3d 939 [2016]). Finally, we agree with defendant that the purported waiver ofthe right to appeal was invalid, thereby permitting him to challenge the severity of the sentenceimposed. That said, given "defendant's inability to comply with the terms of his probation, wefind no abuse of discretion or extraordinary circumstances warranting a modification of hissentence in the interest of justice" (People v Cook, 133 AD3d 1048, 1048 [2015] [internal quotationmarks and citation omitted]).

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