People v King

2019 NY Slip Op 04048 [172 AD3d 1763]

May 23, 2019

Appellate Division, Third Department

As corrected through Wednesday, July 3, 2019

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The People of the State of New York,Respondent, v Clarance King, Appellant.

Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), forappellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Garry, P.J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered March 25, 2016, convicting defendant upon his plea of guilty of the crime of grandlarceny in the fourth degree.

Defendant pleaded guilty to grand larceny in the fourth degree and waived his right to appeal.County Court sentenced defendant, a second felony offender, in accord with the terms of the pleaagreement to 11/2 to 3 years in prison to run concurrently with a sentence recentlyimposed on another conviction, but consecutively to the remainder of a 2010 sentence that hewas currently serving. Defendant appeals.

Initially, we find unavailing defendant's contention that the appeal waiver was invalid. Therecord reflects that County Court explained the right to appeal and distinguished the waiver ofthe right to appeal from the rights automatically forfeited by the guilty plea, which defendantacknowledged he understood. In addition, defendant conferred with counsel before executing awritten appeal waiver in open court, again assuring the court of his understanding thereof.Accordingly, defendant's waiver of the right to appeal was knowing, voluntary and intelligent (see People v Muller, 166 AD3d1240, 1241 [2018]; People vBrown, 163 AD3d 1269, 1270 [2018]). Defendant's challenge to the severity of thesentence imposed is thus precluded by the valid appeal waiver (see People v Chapman, 168 AD3d1315, 1316 [2019]; People v Muller, 166 AD3d at 1241).

Defendant's challenge to the voluntariness of the plea, which survives his waiver of the rightto appeal, is not preserved for our review by an appropriate postallocution motion (see People v Conceicao, 26 NY3d375, 381 [2015]; People vNorton, 164 AD3d 1502, 1503 [2018], lv denied 32 NY3d 1114 [2018]).Further, the narrow exception to the preservation requirement was not triggered as defendantmade no statements that were inconsistent with his guilt or cast doubt on the voluntariness of hisplea so as to warrant further inquiry by County Court (see People v Lopez, 71 NY2d 662,666 [1988]; People v White, 164AD3d 959, 959 [2018]).

Clark, Mulvey, Devine and Pritzker, JJ., concur. Ordered that the judgment is affirmed.