Opinion
107993
05-31-2018
The PEOPLE of the State of New York, Respondent, v. Timothy HAVERLY, Appellant.
Craig S. Leeds, Albany, for appellant. P. David Soares, District Attorney, Albany (Emily A. Schultz, New York, of counsel), for respondent.
Craig S. Leeds, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz, New York, of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Garry, P.J.Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 24, 2015, convicting defendant upon his plea of guilty of the crimes of attempted disseminating indecent material to minors in the first degree and possessing a sexual performance by a child.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information (hereinafter SCI) charging him with attempted disseminating indecent material to minors in the first degree (count 1) and possessing a sexual performance by a child (count 2). As part of the plea agreement, defendant, who was facing additional charges in another state, was required to waive his right to appeal. In exchange for his guilty plea, defendant would be sentenced to a prison term of four years followed by 10 years of postrelease supervision under count 1 of the SCI and a prison term of 1 to 3 years under count 2 of the SCI—said terms to run concurrently; additionally, defendant would not be prosecuted on the out-of-state charges. Following defendant's guilty plea, County Court imposed the agreed-upon terms of imprisonment. Defendant appeals.
We affirm. Defendant's challenge to the factual sufficiency of his plea is precluded by his valid and unchallenged waiver of the right to appeal (see People v. Robinson, 155 A.D.3d 1252, 1253, 64 N.Y.S.3d 740 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ; People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [2017] ) and, further, is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Rodriguez, 154 A.D.3d 1013, 1014, 60 N.Y.S.3d 858 [2017] ; People v. Dejesus, 146 A.D.3d 1077, 1078, 46 N.Y.S.3d 689 [2017] ). To the extent that defendant's brief may be read as contesting the voluntariness of the plea itself, as well as defendant's ineffective assistance of counsel claim (to the degree that it impacts upon the voluntariness of his plea), such claims—although they survive a valid appeal waiver—are similarly unpreserved for our review (see People v. Sumter, 157 A.D.3d 1125, 1125–1126, 70 N.Y.S.3d 253 [2018] ; People v. Evans, 156 A.D.3d 1246, 1246–1247, 68 N.Y.S.3d 564 [2017] ). Contrary to defendant's assertion, the narrow exception to the preservation requirement was not triggered here, as he did not make any statements during the plea colloquy that either negated an essential element of the crime or otherwise called into question his guilt (see People v. Evans, 156 A.D.3d at 1247, 68 N.Y.S.3d 564 ). Finally, defendant's challenge to the agreed-upon sentence imposed is precluded by his waiver of appeal (see People v. Brothers, 155 A.D.3d 1257, 1258, 63 N.Y.S.3d 907 [2017] ).ORDERED that the judgment is affirmed.
Egan Jr., Clark, Mulvey and Rumsey, JJ., concur.