Opinion
107122
01-18-2018
The PEOPLE of the State of New York, Respondent, v. Nashon DOBBS, Appellant.
Erin C. Morigerato, Albany, for appellant. P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Rumsey, J.
Appeal from a judgment of the Supreme Court (Breslin, J.), rendered May 30, 2014 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
In full satisfaction of a four-count indictment, defendant pleaded guilty to burglary in the second degree and waived his right to appeal. County Court thereafter sentenced defendant in accordance with the negotiated plea agreement to seven years in prison, to be followed by three years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal was valid. County Court distinguished the right to appeal from the rights automatically forfeited by the guilty plea, and defendant affirmed his understanding of the waiver. Additionally, defendant executed a written waiver in open court after discussing the waiver with counsel. Accordingly, defendant's waiver of the right to appeal his conviction and sentence was knowing, intelligent and voluntary (see People v. McRae, 150 A.D.3d 1328, 1329, 51 N.Y.S.3d 434 [2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ; People v. Caldwell, 148 A.D.3d 1468, 1468, 49 N.Y.S.3d 312 [2017] ). To the extent that defendant challenges the denial of his motion to suppress certain statements that he made to police and physical evidence seized upon his arrest, such challenge is precluded by his valid appeal waiver (see People v. Hartfield, 151 A.D.3d 1116, 1118, 57 N.Y.S.3d 217 [2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ; People v. Payne, 148 A.D.3d 1226, 1227, 49 N.Y.S.3d 761 [2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ). Similarly, the appeal waiver precludes defendant's claim that the sentence is harsh and excessive (see People v. Hartfield, 151 A.D.3d at 1118, 57 N.Y.S.3d 217 ; People v. Oddy, 144 A.D.3d 1322, 1323, 41 N.Y.S.3d 316 [2016], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ; People v. Hakkenberg, 142 A.D.3d 1251, 1252, 37 N.Y.S.3d 918 [2016], lv denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 [2016] ).
Defendant's challenge to the voluntariness of his guilty plea survives his appeal waiver, but is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Rayburn, 150 A.D.3d 1553, 1554, 55 N.Y.S.3d 512 [2017] ; People v. Toledo, 144 A.D.3d 1332, 1333, 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] ). Further, defendant made no statements during the plea colloquy that would trigger the narrow exception to the preservation rule (see People v. Dubois, 150 A.D.3d 1562, 1563, 55 N.Y.S.3d 513 [2017] ; People v. Taylor, 144 A.D.3d 1317, 1318, 41 N.Y.S.3d 587 [2016], lvs denied 28 N.Y.3d 1144, 1151, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ).
ORDERED that the judgment is affirmed.
McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur.