Opinion
2014-09-4
The PEOPLE of The State of New York, Respondent, v. James WAITE Jr., Appellant.
Erin C. Morigerato, Albany, for appellant. Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Erin C. Morigerato, Albany, for appellant. Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Before: McCARTHY, J.P., GARRY, EGAN JR., LYNCH and CLARK, JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 24, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of marihuana in the second degree.
In full satisfaction of an indictment and other uncharged crimes, defendant pleaded guilty to criminal possession of marihuana in the second degree and waived his right to appeal. County Court thereafter sentenced defendant to two years in prison, followed by one year of postrelease supervision, to be served concurrently with the sentence defendant already was serving. Defendant now appeals.
We affirm. Defendant's challenge to the validity of his appeal waiver is without merit. Our review of the plea colloquy and the written waiver executed by defendant reveals that he was apprised of and understood the rights he was relinquishing, including the right to appeal his sentence. Accordingly, we conclude that defendant's waiver was knowing, intelligent and voluntary ( see People v. Newton, 113 A.D.3d 1000, 1000–1001, 979 N.Y.S.2d 545 [2014], lvs. denied23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 [July 15, 2014]; 23 N.Y.3d 1041, 993 N.Y.S.2d 254, 17 N.E.3d 509 [July 15, 2014] People v. Smith, 112 A.D.3d 1232, 1232, 976 N.Y.S.2d 747 [2013], lv. denied22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ). Although defendant's challenge to the voluntariness of his plea survives his appeal waiver, it is unpreserved for our review, inasmuch as the record does not reflect that defendant made an appropriate postallocution motion ( see People v. Trombley, 115 A.D.3d 1114, 1114, 982 N.Y.S.2d 791 [2014] ). Further, the narrow exception to the preservation rule was not implicated, as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea ( see People v. Bressard, 112 A.D.3d 988, 989, 976 N.Y.S.2d 302 [2013], lv. denied22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014]; People v. Osgood, 111 A.D.3d 1029, 1030, 974 N.Y.S.2d 662 [2013], lv. denied22 N.Y.3d 1089, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014] ). Finally, defendant's contention that his sentence is harsh and excessive is precluded by his valid appeal waiver ( see People v. Campbell, 114 A.D.3d 996, 997, 979 N.Y.S.2d 874 [2014]; People v. Graves, 113 A.D.3d 998, 999, 978 N.Y.S.2d 918 [2014], lv. denied23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [July 14, 2014] ).
ORDERED that the judgment is affirmed. McCARTHY, J.P., GARRY, LYNCH and CLARK, JJ., concur.