Opinion
111077
02-03-2022
The PEOPLE of the State of New York, Respondent, v. Shayquan DEANS, Appellant.
John B. Casey, Cohoes, for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
John B. Casey, Cohoes, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Before: Garry, P.J., Clark, Aarons and Colangelo, JJ.
MEMORANDUM AND ORDER
Aarons, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered January 11, 2019 in Albany County, convicting defendant upon his plea of guilty of the crimes of attempted assault in the first degree and criminal possession of a weapon in the second degree.
Defendant was charged in a two-count indictment with attempted assault in the first degree and criminal possession of a weapon in the second degree. Defendant pleaded guilty as charged and waived the right to appeal. Supreme Court sentenced defendant to concurrent prison terms of 10 years, to be followed by five years of postrelease supervision. Defendant appeals.
We affirm. Even if defendant's claim of ineffective assistance of counsel and his challenge to the denial by County Court (Carter, J.) of his request for new counsel affect the voluntariness of his plea and, therefore, survive his unchallenged appeal waiver, they are unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Avera, 192 A.D.3d 1382, 1382–1383, 145 N.Y.S.3d 199 [2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 501, 170 N.E.3d 375 [2021] ; People v. Rolfe, 83 A.D.3d 1219, 1220, 920 N.Y.S.2d 856 [2011], lv denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ). In any event, were they properly before us, we would find that they are without merit (see People v. Smith, 18 N.Y.3d 588, 593, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012] ; People v. Toledo, 144 A.D.3d 1332, 1334, 40 N.Y.S.3d 680 [2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ). Finally, defendant's remaining contention, that his sentence is harsh and excessive, is precluded by his unchallenged appeal waiver (see People v. Brown, 197 A.D.3d 1440, 1440, 151 N.Y.S.3d 657 [2021] ; People v. Carter, 190 A.D.3d 1161, 1161, 136 N.Y.S.3d 806 [2021] ).
Garry, P.J., Clark and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.