| People v Weis |
| 2019 NY Slip Op 03109 [171 AD3d 1403] |
| April 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Dion Weis, Appellant. |
Dennis J. Lamb, Troy, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered December 8, 2016, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.
In satisfaction of two indictments charging him with various crimes, defendant pleaded guiltyto attempted criminal sale of a controlled substance in the third degree and waived his right toappeal, both orally and in writing. In accordance with the terms of the plea agreement, he wassentenced as a second felony offender to 3
Initially, we find no merit to defendant's claim that his waiver of the right to appeal is invalid.County Court advised defendant of the trial-related rights that he was forfeiting by pleadingguilty, informing him that the right to appeal was separate and distinct from these rights. Thecourt then had defendant review the comprehensive written appeal waiver with counsel in opencourt and ascertained that defendant signed it and understood its ramifications. In view of this,defendant's appeal waiver was valid (seePeople v Moore, 167 AD3d 1158, 1159 [2018], lv denied 33 NY3d951 [2019]; People v Nieves, 163 AD3d 1359, 1359-1360 [2018], lvdenied 32 NY3d 1006 [2018]).
Although not precluded by his valid waiver of the right to appeal, defendant's challenge tothe voluntariness of his guilty plea is not preserved for our review as the record does not disclosethat he made an appropriate postallocution motion (see People v Small, 166 AD3d 1237, 1238 [2018]; People v Suits, 158 AD3d 949,950 [2018]). Moreover, the narrow exception to the preservation rule is inapplicable as defendantdid not make any statements that negated his guilt or cast doubt upon the voluntariness of hisplea (see People v Suits, 158 AD3d at 950-951; People v Shillabeer, 154 AD3d 1017, 1018 [2017]). Furthermore,defendant's valid appeal waiver precludes his challenge to the severity of the sentence (seePeople v Nieves, 163 AD3d at 1360; People v Venable, 161 AD3d 1315, 1315 [2018], lv denied31 NY3d 1154 [2018]).[FN*]
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although a challenge to thelegality of a sentence survives a valid appeal waiver (see People v Surdis, 163 AD3d 1363, 1364 n [2018], lvdenied 32 NY3d 1068 [2018]; People v Quinones, 162 AD3d 1402, 1402-1403 [2018]),defendant's claim that County Court failed to ask him if he wished to make a statement duringsentencing (see CPL 380.50 [1]) is unpreserved inasmuch as defendant failed to make anappropriate objection at sentencing (seePeople v Morales-Lopez, 110 AD3d 1248, 1249 [2013], lv denied 22 NY3d1140 [2014]; People v Cianfarani,81 AD3d 998, 999 [2011]).