State of New York Supreme Court, Appellate Division Third Judicial Department
February 9, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
TIFFANY TOLLIVER, APPELLANT.
Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered July 8, 2008, convicting defendant upon her plea of guilty of the crime of robbery in the first degree.
The opinion of the court was delivered by: Malone Jr., J.
MEMORANDUM AND ORDER
Calendar Date: January 10, 2012
Before: Mercure, Acting P.J., Spain, Rose, Malone Jr. and McCarthy, JJ.
In satisfaction of a 16-count indictment and another pending charge, defendant pleaded guilty to robbery in the first degree and waived her right to appeal. Defendant was sentenced to the agreed-upon prison term of 18 years followed by a period of postrelease supervision. Defendant now appeals.
We are unpersuaded by defendant's contention that her appeal waiver was not knowing, intelligent and voluntary. The plea minutes establish that County Court distinguished the waiver of the right to appeal from the rights forfeited by the guilty plea, and defendant affirmed that she understood the appeal waiver (see People v McDuffie, 89 AD3d 1154, 1156 ; People v Benson, 87 AD3d 1228 ). Moreover, the court confirmed that defendant executed a counseled written appeal waiver (see People v McDuffie, 89 AD3d at 1156).
To the extent that defendant challenges the voluntariness of her plea, it is not preserved for our review inasmuch as she did not move to withdraw her plea or vacate the judgment of conviction (see People v Norton, 88 AD3d 1027, 1028 ). Nor does the narrow exception to the preservation rule apply here inasmuch as a review of the plea colloquy reveals that defendant made no statements to cast doubt upon her guilt or to negate an essential element of the crime to which she pleaded guilty (see id.).
Mercure, Acting P.J., Spain, Rose and McCarthy, JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court
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