People v. Mann
| Decision Date | 30 June 2016 |
| Citation | 33 N.Y.S.3d 779 (Mem),2016 N.Y. Slip Op. 05190,140 A.D.3d 1532 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Sam MANN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY, CLARK and MULVEY, JJ.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered August 14, 2014, convicting defendant upon his plea of guilty of the crime of strangulation in the second degree.
Defendant pleaded guilty to strangulation in the second degree and waived his right to appeal. County Court sentenced defendant as a predicate felon, in accordance with the plea agreement, to a prison term of seven years followed by five years of postrelease supervision. Defendant appeals.
Initially, we are unpersuaded by defendant's contention that the combined oral and written waiver of the right to appeal was not knowing, voluntary and intelligent (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Belile, 137 A.D.3d 1460, 1461, 27 N.Y.S.3d 738 [2016] ). The record reflects that County Court explained, and defendant acknowledged that he understood, that the waiver of the right to appeal is separate and distinct from the rights automatically forfeited by the guilty plea. In addition, defendant confirmed that he had read, understood and signed the written waiver of appeal, which he had executed in open court. Given defendant's valid waiver of the right to appeal, his challenge to the agreed-upon sentence as harsh and excessive is precluded (see People v. Bethea, 133 A.D.3d 1033, 1033, 19 N.Y.S.3d 191 [2015] ).
Although defendant's challenge to the voluntariness of his guilty plea survives the appeal waiver, it is unpreserved for our review as the record does not indicate that defendant made any postallocution motion to withdraw his guilty plea (see CPL 220.60[3] ; People v. Buck, 136 A.D.3d 1117, 1118, 25 N.Y.S.3d 402 [2016] ; People v. Blair, 136 A.D.3d 1105, 1106, 24 N.Y.S.3d 451 [2016], lvs. denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [May 10, 2016] ). Furthermore, the narrow exception to the preservation rule is inapplicable as defendant made no statements during the plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Sawyer, 135 A.D.3d 1164,...
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...confirmed that defendant had read and understood the written waiver of appeal that he executed in open court (see People v. Mann, 140 A.D.3d 1532, 1533, 33 N.Y.S.3d 779 [2016] ; People v. McCray, 139 A.D.3d 1235, 1236, 31 N.Y.S.3d 659 [2016] ). Accordingly, we are satisfied that defendant's......
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