Opinion
105398.
01-28-2016
The PEOPLE of the State of New York, Respondent, v. Ariel RAMOS, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Opinion
ROSE, J.
Appeal from a judgment of the Supreme Court (Teresi, J.), entered October 2, 2012 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal sale of a firearm in the third degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and entered a plea of guilty to criminal sale of a firearm in the third degree as charged in a superior court information. He also orally waived his right to appeal and signed a written waiver of appeal in open court. Defendant was then sentenced, as a second felony offender, to a six-year prison term with five years of postrelease supervision, and he now appeals.
Initially, defendant contends that his guilty plea was not voluntary because he felt rushed into the agreement and unprepared for its full consequences. However, defendant failed to preserve this contention for our review by making an appropriate postallocution motion (see People v. Vellon, 128 A.D.3d 1274, 1274, 10 N.Y.S.3d 347 2015, lv. denied 26 N.Y.3d 1043, 22 N.Y.S.3d 173, 43 N.E.3d 383 2015 ). “Moreover, given that defendant did not make any statements inconsistent with his guilt when entering his plea, the narrow exception to the preservation requirement is inapplicable” (people v. royce, 122 A.d.3d 1008, 1009, 995 n.y.s.2d 417 2014 [citation omitted]; see People v. Monk, 113 A.D.3d 999, 1000, 978 N.Y.S.2d 919 2014, lv. denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 2014 ).
Defendant also contends that his appeal waiver is invalid, citing his confusion regarding its meaning and consequences. While it was unnecessary for defendant to preserve this challenge in order to raise it here (see People v. Vellon, 128 A.D.3d at 1275, 10 N.Y.S.3d 347; People v. Crump, 107 A.D.3d 1046, 1046, 966 N.Y.S.2d 282 2013, lv. denied 21 N.Y.3d 1014, 971 N.Y.S.2d 497, 994 N.E.2d 393 2013 ), we find that Supreme Court's careful instructions, defendant's subsequent execution of a written appeal waiver after conferring with counsel and defendant's own affirmative statements on the record all confirm that the waiver was entered knowingly, voluntarily and intelligently (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 2006; People v. Kormos, 126 A.D.3d 1039, 1039–1040, 4 N.Y.S.3d 390 2015; People v. Toback, 125 A.D.3d 1060, 1061, 3 N.Y.S.3d 444 2015, lv. denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 2015 ).
Defendant further contends that, for several reasons, he was deprived of the effective assistance of counsel. However, he did not raise these claims in a postallocution motion so as to preserve them for our review (see People v. Saylor, 132 A.D.3d 1018, 1018, 17 N.Y.S.3d 324 2015; People v. Lord, 128 A.D.3d 1277, 1278, 10 N.Y.S.3d 349 2015 ). Moreover, except to the extent that these claims could be construed to have impacted upon the voluntariness of his plea, they are precluded by his valid appeal waiver (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Toback, 125 A.D.3d at 1061, 3 N.Y.S.3d 444; People v. Glynn, 73 A.D.3d 1290, 1291, 900 N.Y.S.2d 513 2010 ). In any event, “nothing in the record casts doubt on the apparent effectiveness of counsel (People v. Wares, 124 A.D.3d 1079, 1080, 2 N.Y.S.3d 270 2015 [internal quotation marks and citations omitted], lv. denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 2015; see People v. Trimm, 129 A.D.3d 1215, 1216–2017, 10 N.Y.S.3d 738 2015 ).
Finally, defendant's challenge to the sentence as harsh and excessive is precluded by his valid waiver of appeal (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY and DEVINE, JJ., concur.