Opinion
109520
03-14-2019
The PEOPLE of the State of New York, Respondent, v. Nathan HARRINGTON, Appellant.
Matthew A. Toporowksi, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Matthew A. Toporowksi, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
In March 2016, defendant pleaded guilty to two counts of attempted sexual abuse in the first degree and was sentenced to two 10–year terms of probation, said terms to run concurrently. Defendant's probation was subject to various conditions, including that he refrain from using, possessing or viewing pornography. After a routine search of defendant's cell phone disclosed multiple pornographic images, defendant was charged with violating his probation. In March 2017, defendant admitted to violating his probation, and County Court thereafter revoked defendant's probation and sentenced him to concurrent prison terms of 2½ years followed by 10 years of postrelease supervision. Defendant now appeals.We affirm. To the extent that defendant's brief may be read as challenging the voluntariness of his guilty plea to the probation violation, this argument is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Shaw , 157 A.D.3d 1138, 1140, 69 N.Y.S.3d 438 [2018] ; People v. Sumter , 157 A.D.3d 1125, 1125, 70 N.Y.S.3d 253 [2018] ; People v. Peterson , 147 A.D.3d 1148, 1149, 46 N.Y.S.3d 436 [2017] ). Further, as defendant did not make any statements during the plea colloquy that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement was not triggered (see People v. Sumter , 157 A.D.3d at 1126, 70 N.Y.S.3d 253 ; People v. Woodard , 139 A.D.3d 1238, 1238–1239, 31 N.Y.S.3d 661 [2016], lv denied 28 N.Y.3d 939, 40 N.Y.S.3d 367, 63 N.E.3d 87 [2016] ). Finally, we agree with defendant that the purported waiver of the right to appeal was invalid, thereby permitting him to challenge the severity of the sentence imposed. That said, given "defendant's inability to comply with the terms of his probation, we find no abuse of discretion or extraordinary circumstances warranting a modification of his sentence in the interest of justice" ( People v. Cook , 133 A.D.3d 1048, 1048, 19 N.Y.S.3d 198 [2015] [internal quotation marks and citation omitted] ).
Garry, P.J., Clark, Mulvey, Devine and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.