Calendar Date: December 14, 2017
C. Morigerato, Albany, for appellant.
David Soares, District Attorney, Albany (Michael C. Wetmore
of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey,
MEMORANDUM AND ORDER
from a judgment of the County Court of Albany County
(Herrick, J.), rendered May 27, 2015, which revoked
defendant's probation and imposed a sentence of
2013, defendant pleaded guilty to attempted criminal sale of
a controlled substance in the third degree and waived the
right to appeal. He was sentenced to five years of probation,
the terms of which included, among other things, that he
successfully complete the Albany County drug court program.
County Court explained that, under the plea agreement, if
defendant failed to complete the program or otherwise
violated a condition of probation, his probation would be
revoked and he would be sentenced, as a second felony drug
offender, to a prison term of no less than seven years or
more than eight years, with three years of postrelease
supervision. In 2015, defendant pleaded guilty to violating
the terms of his probation by, among other things, being
arrested and failing to complete the drug court program, and
he waived the right to appeal. County Court revoked his
probation and sentenced him, as a second felony drug
offender, to seven years in prison, to be followed by three
years of postrelease supervision. Defendant appeals.
reject defendant's contention that his waiver of the
right to appeal was invalid (see People v Bartlett,
148 A.D.3d 1468, 1469 ; People v Dolberry, 147
A.D.3d 1149, 1150 , lv denied 29 N.Y.3d 1078');">29 N.Y.3d 1078
). Defendant's contention that his guilty plea to
the probation violation was not knowing, intelligent and
voluntary survives his appeal waiver but is unpreserved for
our review inasmuch as the record does not reflect that he
made an appropriate postallocution motion (see People v
Woodard, 139 A.D.3d 1238, 1238 , lv
denied 28 N.Y.3d 939');">28 N.Y.3d 939 ; People v Secore,
102 A.D.3d 1057, 1058 , lv denied 21 N.Y.3d
1019 ) . Moreover, the exception to the
preservation rule is inapplicable here as defendant did not
make any statements that were inconsistent with his guilt or
cast doubt on the voluntariness of his plea (see People v
Jones, 139 A.D.3d 1237, 1237 , lv denied
28 N.Y.3d 932');">28 N.Y.3d 932 ; People v McGregor, 119 A.D.3d
1235, 1236 , lv denied 25 N.Y.3d 991');">25 N.Y.3d 991 ).
Similarly, to the extent that defendant's ineffective
assistance of counsel claims implicate the voluntariness of
his plea, such claims survive his valid appeal waiver but are
not preserved for our review absent an appropriate
postallocution motion (see People v Dubois, 150
A.D.3d 1562, 1563-1564 ; People v Islam, 134
A.D.3d 1348, 1349 ).
also contends that his federal drug conspiracy conviction
does not qualify as a predicate New York felony and,
therefore, it cannot serve as a basis for his second felony
drug offender adjudication. Although this claim is being
raised for the first time on appeal, we find that the claim
"falls within the narrow exception to our preservation
rule permitting appellate review when a sentence's
illegality is readily discernible from the... record"
(People v Santiago, 22 N.Y.3d 900, 903 ;
see People v Samms, 95 N.Y.2d 52, 55-56 ;
People v Martinez, 130 A.D.3d 1087, 1088 ,
lv denied 26 N.Y.3d 1010');">26 N.Y.3d 1010 ). In the special
information charging a predicate offense, the People alleged
that defendant was previously convicted in the U.S. District
Court for the Northern District of New York of conspiracy to
distribute marihuana (21 USC §§ 841, 846). However,
the Court of Appeals has determined that, "under New
York's 'strict equivalency' standard for
convictions rendered in other jurisdictions, a federal
conviction for conspiracy to commit a drug crime may not
serve as a predicate felony for sentencing purposes"
(People v Ramos, 19 N.Y.3d 417, 418 ). We
therefore vacate the sentence and remit the matter to County
Court for resentencing (see People v Parker, 121
A.D.3d 1190, 1191 ).
Jr., Devine, Mulvey and Rumsey, JJ., concur.
that the judgment is modified, on the law, by vacating the
sentence imposed; matter remitted to the County Court of
Albany County for resentencing; and, as so modified,
 To the extent that defendant also
challenges his guilty plea to attempted criminal sale of a
controlled substance in the third degree, those arguments are
not before us inasmuch as he did not appeal from that
judgment (see ...