Opinion
106511
05-28-2015
The PEOPLE of the State of New York, Respondent, v. Jacquelin SMALLS, Appellant.
Keeley A. Maloney, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Keeley A. Maloney, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: PETERS, P.J., GARRY, EGAN JR. and LYNCH, JJ.
Opinion
EGAN JR., J.Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered December 9, 2013, convicting defendant upon her plea of guilty of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).
Defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. Defendant thereafter entered an Alford plea to one count of each crime, allocuted to the remaining two charges and waived her right to appeal. County Court sentenced defendant within the parameters of the plea agreement to an aggregate prison term of three years followed by two years of postrelease supervision, to be served concurrently with a recently imposed sentence. Defendant now appeals.
We affirm. Defendant's claim of ineffective assistance of counsel, to the extent that it survives her appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that she made an appropriate postallocution motion (see People v. Smith, 119 A.D.3d 1088, 1089, 988 N.Y.S.2d 724 [2014], lvs. denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014], 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ). Defendant's remaining claim, that the sentence imposed is harsh and excessive, is precluded by her unchallenged appeal waiver (see People v. Cisneros, 115 A.D.3d 1117, 1117, 982 N.Y.S.2d 411 [2014], lv. denied 24 N.Y.3d 959, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY and LYNCH, JJ., concur.