Calendar Date: November 13, 2017
Timothy S. Brennan, Schenectady, for appellant.
M. Carney, District Attorney, Schenectady (Michael Sardo, Law
Intern), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Pritzker,
MEMORANDUM AND ORDER
from a judgment of the County Court of Schenectady County
(Sypniewski, J.), rendered June 26, 2015, convicting
defendant upon his plea of guilty of the crime of attempted
criminal possession of a weapon in the third degree.
was charged in a six-count indictment with various weapons-
and drug-related crimes. In full satisfaction thereof,
defendant pleaded guilty to the reduced charge of attempted
criminal possession of a weapon in the third degree and
executed a written waiver of the right to appeal. Consistent
with the terms of the plea agreement, defendant thereafter
was sentenced to a prison term of three years followed by two
years of postrelease supervision. Defendant now appeals.
affirm. Contrary to defendant's assertion, the record
establishes that defendant's combined oral and written
waiver of the right to appeal was knowing, intelligent and
voluntary (see People v Sanders, 25 N.Y.3d 337,
339-341 ; People v Pixley, 150 A.D.3d 1555,
1556-1557 , lv denied 30 N.Y.3d 952');">30 N.Y.3d 952 ).
Defendant was apprised that a waiver of the right to appeal
was a condition of the plea agreement (see People v
Bateman, 151 A.D.3d 1482, 1483 ) and, during the
ensuing colloquy, County Court explained that defendant's
right to appeal was separate and distinct from those
trial-related rights automatically forfeited by his guilty
plea (see People v Lopez, 6 N.Y.3d 248, 256 ;
People v Lambert, 151 A.D.3d 1119, 1119 ,
lv denied 29 N.Y.3d 1092');">29 N.Y.3d 1092 ). Defendant, in
turn, orally confirmed his understanding of the waiver and
thereafter executed a detailed written waiver of appeal. He
acknowledged that he had reviewed the waiver with counsel,
indicating that he had no questions relative thereto, and
again confirmed his understanding of the waiver (see
People v Lambert, 151 A.D.3d at 1119; People v
Tulip, 150 A.D.3d 1564, 1565 ). "As
defendant's full appreciation of the consequences and
understanding of the terms and conditions of the plea,
including a waiver of the right to appeal, are apparent on
the face of the record, we find that his waiver of appeal was
made knowingly, intelligently and voluntarily"
(People v Bateman, 151 A.D.3d at 1483 [internal
quotation marks and citations omitted]; see People v
Lester, 141 A.D.3d 951, 952 , lv denied
28 N.Y.3d 1185');">28 N.Y.3d 1185 ).
further challenge to the voluntariness of his plea survives
the valid appeal waiver but is unpreserved for our review in
the absence of an appropriate postallocution motion (see
People v Bonds, 148 A.D.3d 1304, 1305 , lvs
denied 29 N.Y.3d 1076, 1081 ; People v
Dolberry, 147 A.D.3d 1149, 1150 , lv
denied 29 N.Y.3d 1078');">29 N.Y.3d 1078 ). Additionally, inasmuch as
a review of the plea colloquy reveals that defendant did not
make any statements that were inconsistent with his guilt or
otherwise called into question the voluntariness of his plea,
the narrow exception to the preservation doctrine has not
been triggered (see People v Millard, 147 A.D.3d
1155, 1156 , lv denied 29 N.Y.3d 999');">29 N.Y.3d 999 ;
People v Oddy, 144 A.D.3d 1322, 1323-1324 ,
lv denied 29 N.Y.3d 1131');">29 N.Y.3d 1131 ).
McCarthy, J.P., Egan Jr., Devine and ...