| People v Griffin |
| 2019 NY Slip Op 07962 [177 AD3d 1039] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyrell Griffin, Appellant. |
Erin C. Morigerato, Albany, for appellant.
D. Holley Carnwright, District Attorney, Kingston (Joan Gudesblatt Lamb ofcounsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (WilliamsJr., J.), rendered September 12, 2017, convicting defendant upon his plea of guilty of thecrime of attempted promoting prison contraband in the first degree.
Defendant waived indictment and agreed to be prosecuted by a superior courtinformation charging him with the crime of attempted promoting prison contraband inthe first degree. He pleaded guilty to this charge and waived his right to appeal, bothorally and in writing. In accordance with the terms of the plea agreement, he wassentenced as a second felony offender to 2 to 4 years in prison, to run consecutively tothe prison sentence that he was then serving. Defendant appeals.
Initially, we find no merit to defendant's challenge to the validity of his appealwaiver. The record reveals that County Court advised defendant of the separate anddistinct nature of the waiver of the right to appeal, as well as its many ramifications, anddefendant communicated his understanding thereof. In addition, he signed acomprehensive written waiver in open court after conferring with counsel. Accordingly,we find that defendant's appeal waiver was knowing, voluntary and intelligent (see People v Cannelli, 173AD3d 1567, 1567-1568 [2019]; People v Morton, 173 AD3d 1464, 1465 [2019], lvdenied 34 NY3d 935 [2019]).
Although not precluded by his valid appeal waiver, defendant's claim that his guiltyplea was not knowing, voluntary and intelligent has not been preserved for our review, asthe record does not reflect that he made an appropriate postallocution motion despitehaving an opportunity to do so (see People v Morton, 173 AD3d at 1465; People v Horton, 173 AD3d1342, 1343 [2019], lv denied 34 NY3d 932 [2019]; People v Pantoja, 172 AD3d1826, 1826-1827 [2019]). For the same reason, defendant's claim that his counselwas ineffective—to the extent that it impacted the voluntariness of his guiltyplea—is also unpreserved (see People v Alexander, 174 AD3d 1068, 1069 [2019],lv denied 34 NY3d 949 [2019]; People vWhite, 172 AD3d 1822, 1823-1824 [2019], lv denied 33 NY3d 1110[2019]). Moreover, the exception to the preservation rule is inapplicable, as defendantdid not make any statements that negated his guilt or cast doubt upon the voluntariness ofhis plea (see People v Morton, 173 AD3d at 1465-1466; People v White,172 AD3d at 1824). Lastly, defendant's challenge to the severity of his sentence isforeclosed by his valid appeal waiver (see People v King, 172 AD3d 1763, 1764 [2019]; People v Greene, 171 AD3d1407, 1408 [2019]).
Lynch, J.P., Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.