People v. O'Keefe

• Decision Date: 19 November 2015
• Citation: 19 N.Y.S.3d 196 (Mem),133 A.D.3d 1034,2015 N.Y. Slip Op. 08462
• Parties: The PEOPLE of the State of New York, Respondent, v. Patrick O'KEEFE, Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1034

19 N.Y.S.3d 196 (Mem)

2015 N.Y. Slip Op. 08462

The PEOPLE of the State of New York, Respondent,

v.Patrick O'KEEFE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 19, 2015.

John P.M. Wappett, Public Defender, Lake George (Glenn B. Liebertof counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Opinion

DEVINE, J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered June 21, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal, with the understanding that he would be sentenced to five years in prison and three years of postrelease supervision. County Court thereafter imposed the agreed-upon sentence and defendant now appeals.

We affirm. To the extent that defendant challenges the validity of his appeal waiver, the plea colloquy and the written waiver executed in open court demonstrate that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Donah,127 A.D.3d 1413, 1413, 5 N.Y.S.3d 736 [2015]; People v. Merrill,123 A.D.3d 1339, 1339, 999 N.Y.S.2d 265 [2014], lv. denied26 N.Y.3d 970, 18 N.Y.S.3d 606, 40 N.E.3d 584 [2015]). Defendant's remaining contention, that his plea was involuntary, survives his appeal waiver but is not preserved for our review, as the record does not reflect that he made an appropriate postallocution motion (see People v. Smith,123 A.D.3d 1375, 1376, 999 N.Y.S.2d 276 [2014], lv. denied26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015]; People v. Guyette,121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014]). Further, the narrow exception to the preservation rule is not implicated here, inasmuch 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. Kormos,126 A.D.3d 1039, 1040, 4 N.Y.S.3d 390 [2015]; People v. Skidds,123 A.D.3d 1342, 1342–1343, 999 N.Y.S.2d 266 [2014], lv. denied25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015]).

ORDERED that the judgment is affirmed.

McCARTHY, J.P., ROSEand CLARK, JJ., concur.