| People v Smith |
| 2020 NY Slip Op 06415 [188 AD3d 1357] |
| November 12, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jason S. Smith, Appellant. |
Veronica Reed, Schenectady, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered October 22, 2018, convicting defendant upon his plea of guilty of the crime of robberyin the first degree.
In satisfaction of a four-count indictment stemming from the robbery of a liquor store,defendant pleaded guilty to robbery in the first degree and agreed to waive his right to appeal. Hewas sentenced as a second felony offender, in accordance with the plea agreement, to a prisonterm of 20 years, followed by five years of postrelease supervision, to be served consecutivelywith a prior undischarged sentence. Defendant appeals.
Defendant's only contentions on appeal are that the waiver of the right to appeal was invalidand that the plea was not knowingly, voluntarily and intelligently entered. Regardless of whetherthe appeal waiver is valid, defendant's challenge to the voluntariness of the guilty plea wouldsurvive any such waiver (see People vSimon, 166 AD3d 1075, 1076 [2018]). Defendant's challenge to the voluntariness of theplea, however, is unpreserved for our review as the record does not reflect that an appropriatepostallocution motion was made and the narrow exception to the preservation rule is notimplicated by any statements made during the plea colloquy (see People v Gonzalez, 184 AD3d 899, 899 [2020]; People v Berkman, 184 AD3d 898,898 [2020]; People v Martin, 179AD3d 1385, 1386-1387 [2020]). As such, the judgment of conviction will not bedisturbed.
Lynch, J.P., Devine, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.