People v Huntley

2019 NY Slip Op 07958 [177 AD3d 1034]

November 7, 2019

Appellate Division, Third Department

As corrected through Wednesday, January 1, 2020

[*1]

The People of the State of New York,Respondent, v Niquasia Huntley, Appellant.

Mark A. Diamond, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.

Mulvey, J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered August 7, 2017, which revoked defendant's probation andimposed a sentence of imprisonment.

In August 2016, defendant pleaded guilty to a reduced charge of attempted criminalpossession of a controlled substance in the third degree in satisfaction of a multicountindictment, waived her right to appeal and, pursuant to a plea agreement, was sentencedto time served and five years of probation. In January 2017, a violation of probationpetition was filed against her alleging that she had violated six conditions of herprobation, including being arrested for robbery in the first degree and 10 other charges.In April 2017, defendant admitted to violating one condition of her probation and againwaived her right to appeal. County Court then revoked her probation and resentenced herto a prison term of 31/2 years, to be followed by two years of postreleasesupervision, which was set to run concurrently with the sentence ultimately imposed forher robbery conviction. Defendant appeals.

Defendant's challenge to the voluntariness of her admission to the probationviolation survives her unchallenged waiver of the right to appeal from the April 2017proceedings (see People vSumter, 157 AD3d 1125, 1125 [2018]), but the claim is not preserved for ourreview absent evidence of an appropriate postallocution motion (see People v Mastro, 174AD3d 1232, 1232 [2019]; People v Miazga, 171 AD3d 1358, 1359 [2019]). Inaddition, the narrow exception to the preservation requirement is inapplicable here asdefendant did not make any statements during her admission colloquy or at sentencingthat were inconsistent with her guilt or otherwise cast doubt on the voluntariness of heradmission (cf. People vPastor, 28 NY3d 1089, 1090-1091 [2016]; People v Lopez, 71 NY2d662, 666 [1988]). Defendant's challenge to the factual sufficiency of her admission isprecluded by the unchallenged appeal waiver (cf. People v Hummel-Parker, 171 AD3d 1397, 1398[2019]; People v Dorsey,170 AD3d 1325, 1325 [2019], lv denied 33 NY3d 1068 [2019]), as is herclaim that the resentence is harsh and excessive (see People v Bailey, 157 AD3d 1133, 1134 [2018], lvdenied 31 NY3d 981 [2018]; see also People v Stevens, 166 AD3d 1167, 1168 [2018],lv denied 32 NY3d 1129 [2018]; People v Marable, 164 AD3d 1542, 1543 [2018], lvdenied 32 NY3d 1126 [2018]).

Garry, P.J., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.