| People v Prince |
| 2019 NY Slip Op 02181 [170 AD3d 1380] |
| March 21, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Lemar Prince, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered May 17, 2017, convicting defendant upon his plea of guilty of the crime of criminalcontempt in the first degree.
In June 2016, defendant was charged by indictment with criminal contempt in the firstdegree, criminal contempt in the second degree and petit larceny. In full satisfaction thereof, andin anticipation of an agreed-upon sentence of 1
We affirm. Initially, we reject defendant's contention that his waiver of the right to appealwas not knowing, intelligent and voluntary. The record reflects that defendant was informed atthe outset of the plea proceeding that a waiver of the right to appeal was a condition of the pleaagreement, and he verbalized his understanding of the terms of the agreement. County Court alsoadvised defendant that his right to appeal was "a separate and distinct right" from the trial-relatedrights that he was automatically forfeiting by pleading guilty. The court allowed defendant timeto discuss the waiver of appeal, among other issues, with his counsel and confirmed thatdefendant had no further questions regarding the waiver of appeal. Defendant also assented to awritten appeal waiver, which stated that he was voluntarily, knowingly and intelligently waivinghis right to appeal and that his attorney had answered all of his questions regarding the appealwaiver to his satisfaction. We therefore find that defendant's waiver of the right to appeal wasvalid (see People v Hall, 167 AD3d1165, 1165-1166 [2018], lv denied 32 NY3d 1204 [2019]; People v Lomax, 161 AD3d 1454,1455 [2018], lv denied 32 NY3d 1113 [2018]; People v Chaney, 160 AD3d 1281, 1282 [2018]; People v Savage, 158 AD3d 854,855 [2018]).
Although defendant's challenge to the voluntariness of his plea survives his valid waiver ofthe right to appeal (see People vMartinez, 166 AD3d 1376, 1376 [2018], lv denied 32 NY3d 1207[2019]; People v Tucker, 164 AD3d948, 950 [2018]), his claim has not been preserved for our review as the record does notreflect that he made an appropriate postallocution motion to withdraw his plea, despite ampleopportunity to do so prior to sentencing (see CPL 220.60 [3]; People v Miazga, 167 AD3d 1167,1168 [2018], lv denied 32 NY3d 1207 [2019]; People v Moore, 167 AD3d 1158,1159-1160 [2018]). Defendant's assertion that he received the ineffective assistance of counsel,to the extent that it implicates the voluntariness of his guilty plea, also survives his waiver ofappeal (see People v Bonfante, 167AD3d 1160, 1160 [2018], lv denied 32 NY3d 1202 [2019]; People v Walker, 166 AD3d 1393,1393 [2018]), but is similarly unpreserved (see People v Gardiner, 159 AD3d 1233, 1234 [2018], lvdenied 31 NY3d 1082 [2018]; People v Muller, 166 AD3d 1240, 1240 [2018]). Moreover, thenarrow exception to the preservation requirement does not apply, as defendant did not make anystatements that were inconsistent with his guilt or otherwise called into question thevoluntariness of his plea (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Gannon, 167 AD3d 1163,1165 [2018]; People v Letohic, 166AD3d 1223, 1223 [2018], lv denied 32 NY3d 1174 [2019]).
Garry, P.J., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.