Opinion
107969
01-11-2018
The PEOPLE of the State of New York, Respondent, v. Phyllis DUVALL, Appellant.
Brian M. Callahan, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Jennifer Uhl, Law Intern), for respondent.
Brian M. Callahan, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Jennifer Uhl, Law Intern), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J.Appeal from a judgment of the County Court of Schenectady County (Murphy, J.), rendered September 21, 2015, convicting defendant upon her plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree and waived her right to appeal. Consistent with the terms of the plea agreement, County Court sentenced defendant to a five-year term of probation. Defendant now appeals.
We affirm. Defendant contends that her plea was not knowing, voluntary and intelligent because County Court failed to advise her that she would be giving up her constitutional privilege against self-incrimination by pleading guilty. While defendant's challenge to the voluntariness of her plea survives the unchallenged appeal waiver (see People v. Bond, 146 A.D.3d 1155, 1156, 44 N.Y.S.3d 776 [2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ; People v. Giammichele, 144 A.D.3d 1320, 1320, 40 N.Y.S.3d 794 [2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ), her claim is unpreserved for our review as there is no indication in the record that she made an appropriate postallocution motion in the ample time that she had to do so prior to sentencing (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Golgoski, 145 A.D.3d 1195, 1195, 42 N.Y.S.3d 481 [2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ). Moreover, the narrow exception to the preservation requirement is not applicable as defendant made no statements during the plea colloquy that cast doubt upon her guilt or otherwise called into question the voluntariness of her plea (see People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Johnson, 153 A.D.3d 1047, 1048, 59 N.Y.S.3d 866 [2017] ). We would, in any case, find that County Court adequately advised defendant of the trial-related rights that she was forfeiting by pleading guilty and that she expressed her understanding and waiver of those rights (see People v. Bond, 146 A.D.3d at 1156, 44 N.Y.S.3d 776 ; People v. Sommers, 140 A.D.3d 1537, 1538, 33 N.Y.S.3d 789 [2016], lv denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ).
ORDERED that the judgment is affirmed.
McCarthy, J.P., Egan Jr., Lynch and Pritzker, JJ., concur.