Opinion
109678
04-25-2019
The PEOPLE of the State of New York, Respondent, v. Dion WEIS, Appellant.
Dennis J. Lamb, Troy, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Dennis J. Lamb, Troy, 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
Devine, J.Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered December 8, 2016, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
In satisfaction of two indictments charging him with various crimes, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree and waived his right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to 3½ years in prison followed by three years of postrelease supervision. He appeals.
Initially, we find no merit to defendant's claim that his waiver of the right to appeal is invalid. County Court advised defendant of the trial-related rights that he was forfeiting by pleading guilty, informing him that the right to appeal was separate and distinct from these rights. The court then had defendant review the comprehensive written appeal waiver with counsel in open court and ascertained that defendant signed it and understood its ramifications. In view of this, defendant's appeal waiver was valid (see People v. Moore, 167 A.D.3d 1158, 1159, 89 N.Y.S.3d 483 [2018], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Mar. 12, 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] ).
Although not precluded by his valid waiver of the right to appeal, defendant's challenge to the voluntariness of his guilty plea is not preserved for our review as the record does not disclose that he made an appropriate postallocution motion (see People v. Small, 166 A.D.3d 1237, 1238, 86 N.Y.S.3d 677 [2018] ; People v. Suits, 158 A.D.3d 949, 950, 71 N.Y.S.3d 664 [2018] ). Moreover, the narrow exception to the preservation rule is inapplicable as defendant did not make any statements that negated his guilt or cast doubt upon the voluntariness of his plea (see People v. Suits, 158 A.D.3d at 950–951, 71 N.Y.S.3d 664 ; People v. Shillabeer, 154 A.D.3d 1017, 1018, 60 N.Y.S.3d 862 [2017] ). Furthermore, defendant's valid appeal waiver precludes his challenge to the severity of the sentence (see People v. Nieves, 163 A.D.3d at 1360, 77 N.Y.S.3d 908 ; 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] ).
Although a challenge to the legality of a sentence survives a valid appeal waiver (see
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.
People v. Surdis, 163 A.D.3d 1363, 1364 n., 77 N.Y.S.3d 906 [2018], lv denied 32 N.Y.3d 1068, 89 N.Y.S.3d 123, 113 N.E.3d 957 [2018] ; People v. Quinones, 162 A.D.3d 1402, 1402–1403, 79 N.Y.S.3d 760 [2018] ), defendant's claim that County Court failed to ask him if he wished to make a statement during sentencing (see CPL 380.50[1] ) is unpreserved inasmuch as defendant failed to make an appropriate objection at sentencing (see People v. Morales–Lopez, 110 A.D.3d 1248, 1249, 973 N.Y.S.2d 442 [2013], lvs denied 22 N.Y.3d 1140, 983 N.Y.S.2d 499, 6 N.E.3d 618 [2014] ; People v. Cianfarani, 81 A.D.3d 998, 999, 916 N.Y.S.2d 650 [2011] ).