| People v Botts |
| 2021 NY Slip Op 00594 [191 AD3d 1044] |
| February 4, 2021 |
| Appellate Division, Third Department |
[*1](February 4, 2021)
| The People of the State of New York,Respondent, v God Islam Botts, Appellant. |
Erin C. Morigerato, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered January 9,2018, in Albany County, convicting defendant upon his plea of guilty of the crime of burglary inthe first degree.
In July 2017, defendant and his codefendant were charged, in a 21-count indictment, withvarious crimes for unlawfully entering and burglarizing a residence in Albany County. Insatisfaction of the 17 counts against him, defendant pleaded guilty to burglary in the first degreeand agreed to waive his right to appeal. In accordance with the terms of the plea agreement,defendant was sentenced, as a second violent felony offender, to a prison sentence of 13 years,followed by five years of postrelease supervision. Defendant appeals.
We affirm. Supreme Court made clear that the waiver of the right to appeal was a conditionof the plea bargain, adequately distinguished the right to appeal as separate and apart from thetrial-related rights forfeited by virtue of the guilty plea, and confirmed with defendant that heunderstood the waiver and its consequences. Additionally, defendant executed a written appealwaiver, after having an opportunity to review it with defense counsel, and assured the court thathe understood it. In view of foregoing, we find that defendant knowingly, voluntarily andintelligently waived his right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Hammond, 186 AD3d1836, 1836-1837 [2020]; People vTaft, 169 AD3d 1266, 1266-1267 [2019], lv denied 33 NY3d 1074 [2019]).Given the valid appeal waiver, defendant's challenge to the sentence as harsh and excessive isforeclosed (see People v Lopez, 6 NY3d at 256; People v Burnett, 186 AD3d 1837, 1838 [2020], lv denied 36 NY3d 970 [2020]; People vPurnell, 186 AD3d 1834, 1834-1835 [2020], lv denied 36 NY3d 975 [2020]).
Defendant's challenge to the voluntariness of the plea survives the valid appeal waiver, but isunpreserved for our review as the record does not reflect that he made an appropriatepostallocution motion (see People vApelles, 185 AD3d 1298, 1299 [2020], lv denied 35 NY3d 1092 [2020]; People v Gumbs, 182 AD3d 701,702 [2020], lv denied 35 NY3d 1066 [2020]). Furthermore, the narrow exception to thepreservation requirement was not implicated as the record does not disclose that defendant madeany statements during the plea colloquy or at sentencing that cast doubt upon his guilt orotherwise called into question the voluntariness of the plea (see People v Rodriguez, 185 AD3d 1233, 1235 [2020], lvdenied 36 NY3d 975 [2020]; People v Gumbs, 182 AD3d at 702). Defendant's contention that hewas denied the effective assistance of counsel is precluded by the valid appeal waiver except tothe extent that it impacts the voluntariness of the plea, but is also unpreserved for our review inthe absence of an appropriate postallocution motion (see People v Harrington, 185 AD3d 1301, 1302 [2020]; People v Vilbrin, 183 AD3d 1012,1013 [2020[*2]], lv denied 35 NY3d 1049 [2020]).
Defendant also challenges the factual sufficiency of the indictment, claiming, among otherthings, that the indictment was based upon hearsay evidence and the requisite intent required forthe conviction was lacking. Defendant's challenges to the sufficiency of the indictment, however,were waived by his guilty plea (seePeople v McDonald, 165 AD3d 1327, 1328 [2018], lv denied 32 NY3d 1175[2019]; People v Rivera, 164 AD3d1573, 1574-1575 [2018], lv denied 32 NY3d 1177 [2019]). Furthermore, hischallenges to the sufficiency of the plea were waived by the valid appeal waiver (see People vMcDonald, 165 AD3d at 1328; People v Rodriguez, 154 AD3d 1013, 1014 [2017]). Defendant'sremaining contentions, to the extent not specifically addressed, have been examined and lackmerit.
Egan Jr., J.P., Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that thejudgment is affirmed.