Opinion
108577 108578
04-18-2019
The PEOPLE of the State of New York, Respondent, v. Timothy VANALST, Appellant.
Timothy S. Brennan, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J.In September 2015, defendant was charged by indictment with criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree and criminal possession of marihuana in the fifth degree. In January 2016, defendant was charged by superior court information with attempted criminal possession of a weapon in the second degree. As part of a negotiated global disposition of the indictment and superior court information, defendant pleaded guilty to two counts of attempted criminal possession of a weapon in the second degree and waived his right to appeal. Thereafter, County Court sentenced defendant, as a second felony offender, in accordance with the terms of the plea agreement, to two concurrent prison terms of five years, to be followed by five years of postrelease supervision. He appeals.
We affirm. Contrary to his contention, defendant validly waived his right to appeal. Initially, the record reflects that defendant was advised at the outset of the plea proceeding that the waiver of his right to appeal was a condition of the plea agreement (see People v. Moore, 167 A.D.3d 1158, 1158, 89 N.Y.S.3d 483 [2018], lv denied 32 N.Y.3d 1206, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 WL 1578261 [Mar. 12, 2019] ; People v. Koontz, 166 A.D.3d 1215, 1216, 86 N.Y.S.3d 357 [2018], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 WL 1199866 [Feb. 6, 2019] ; People v. Chaney, 160 A.D.3d 1281, 1282, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). During the plea colloquy, County Court distinguished the right to appeal as separate and distinct from the trial-related rights automatically forfeited by a guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Defendant thereafter executed two written appeal waivers in open court reflecting the same, and they both indicate that defendant had been informed by his counsel of the consequences of waiving his right to appeal. Defendant verbally acknowledged that he signed and understood the waivers and that he had no further questions for counsel. We therefore find that defendant's combined oral and written waivers are valid (see People v. Hall, 167 A.D.3d 1165, 1165–1166, 89 N.Y.S.3d 481 [2018], lvs denied 32 N.Y.3d 1201, 1204, –––– N.Y.S.3d ––––, ––––, ––– N.E.3d ––––, –––– [Feb. 25, 2019] ; People v. Nieves, 163 A.D.3d 1359, 1359–1360, 77 N.Y.S.3d 908 [2018], lv denied 32 N.Y.3d 1006, 86 N.Y.S.3d 765, 111 N.E.3d 1121 [2018] ; People v. Venable, 161 A.D.3d 1315, 1315, 73 N.Y.S.3d 459 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ). Accordingly, defendant's contention that the agreed-upon sentence is harsh and excessive has been foreclosed (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Royal, 161 A.D.3d 1217, 1218, 77 N.Y.S.3d 181 [2018], lv denied 32 N.Y.3d 1007, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018] ; People v. Lomax, 161 A.D.3d 1454, 1455, 77 N.Y.S.3d 755 [2018], lv denied 32 N.Y.3d 1113, 91 N.Y.S.3d 364, 115 N.E.3d 636 [2018] ).
Although defendant's challenge to the voluntariness of his plea survives his valid appeal waivers (see People v. Moore, 167 A.D.3d at 1159, 89 N.Y.S.3d 483 ; People v. Tucker, 164 A.D.3d 948, 950, 81 N.Y.S.3d 677 [2018] ), his claim has not been preserved for our review as the record does not reflect that he made an appropriate postallocution motion (see CPL 220.60[3] ; People v. Guidry, 158 A.D.3d 901, 902, 71 N.Y.S.3d 174 [2018] ; People v. Williams, 155 A.D.3d 1253, 1254, 64 N.Y.S.3d 742 [2017], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ), and the narrow exception to the preservation rule is inapplicable (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).
Garry, P.J., Egan Jr., Devine and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.