| People v Vanalst |
| 2019 NY Slip Op 02921 [171 AD3d 1349] |
| April 18, 2019 |
| Appellate Division, Third Department |
[*1](April 18, 2019)
| The People of the State of New York,Respondent, v Timothy Vanalst, Appellant. |
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered April 19, 2016, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the second degree (two counts).
In September 2015, defendant was charged by indictment with criminal possession of aweapon in the second degree (two counts), criminal possession of a weapon in the third degreeand criminal possession of marihuana in the fifth degree. In January 2016, defendant was chargedby superior court information with attempted criminal possession of a weapon in the seconddegree. As part of a negotiated global disposition of the indictment and superior courtinformation, defendant pleaded guilty to two counts of attempted criminal possession of aweapon in the second degree and waived his right to appeal. Thereafter, County Court sentenceddefendant, as a second felony offender, in accordance with the terms of the plea agreement, totwo concurrent prison terms of five years, to be followed by five years of postrelease supervision.He appeals.
We affirm. Contrary to his contention, defendant validly waived his right to appeal. Initially,the record reflects that defendant was advised at the outset of the plea proceeding that the waiverof his right to appeal was a condition of the plea agreement (see People v Moore, 167 AD3d 1158, 1158 [2018], lvdenied 33 NY3d 951 [2019]; People v Koontz, 166 AD3d 1215, 1216 [2018], lv denied32 NY3d 1206 [2019]; People vChaney, 160 AD3d 1281, 1282 [2018], lv denied 31 NY3d 1146 [2018]). Duringthe plea colloquy, County Court distinguished the right to appeal as separate and distinct from thetrial-related rights automatically forfeited by a guilty plea (see People v Lopez, 6 NY3d 248, 256-257 [2006]). Defendantthereafter executed two written appeal waivers in open court reflecting the same, and they bothindicate that defendant had been informed by his counsel of the consequences of waiving hisright to appeal. Defendant verbally acknowledged that he signed and understood the waivers andthat he had no further questions for counsel. We therefore find that defendant's combined oraland written waivers are valid (seePeople v Hall, 167 AD3d 1165, 1165-1166 [2018], lv denied 32 NY3d 1204[2019]; People v Nieves, 163 AD3d1359, 1359-1360 [2018], lv denied 32 NY3d 1006 [2018]; People v Venable, 161 AD3d1315, 1315 [2018], lv denied 31 NY3d 1154 [2018]). Accordingly, defendant'scontention that the agreed-upon sentence is harsh and excessive has been foreclosed (seePeople v Lopez, 6 NY3d at 256; People v Royal, 161 AD3d 1217, 1218 [2018], lv denied 32NY3d 1007 [2018]; People vLomax, 161 AD3d 1454, 1455 [2018], lv denied 32 NY3d 1113 [2018]).
Although defendant's challenge to the voluntariness of his plea survives his valid appealwaivers (see People v Moore, 167 AD3d at 1159; People v Tucker, 164 AD3d 948, 950 [2018]), his claim has notbeen preserved for our review as the record does not reflect that he made an appropriatepostallocution motion (see CPL 220.60 [3]; People v Guidry, 158 AD3d 901, 902 [2018]; People v Williams, 155 AD3d1253, 1254 [2017], lv denied 31 NY3d 1089 [2018]), and the narrow exception tothe preservation rule is inapplicable (seePeople v Pastor, 28 NY3d 1089, 1090-1091 [2016]; People v Lopez, 71 NY2d662, 666 [1988]).
Garry, P.J., Egan Jr., Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.