PEOPLE v. RYALS (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered February 21, 2020, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

Defendant was indicted and charged with four counts of robbery in the second degree, two counts of conspiracy in the fourth degree and one count of petit larceny – all stemming from defendant's theft of certain cellphones.  In full satisfaction of that indictment, defendant was offered the opportunity to plead guilty to one count of robbery in the second degree (Penal Law § 160.10[2][a]) with the understanding that he would be sentenced as a second felony offender to a prison term of 51/212 years followed by five years of postrelease supervision.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the plea agreement, and County Court imposed the agreed-upon sentence.  Defendant appeals.

Inasmuch as defendant's challenge to the voluntariness of his plea survives even a valid appeal waiver (see People v. Miller, 221 A.D.3d 1177, 1178, 200 N.Y.S.3d 180 [3d Dept. 2023];  People v. Guerrero, 194 A.D.3d 1258, 1260, 147 N.Y.S.3d 264 [3d Dept. 2021], lv denied 37 N.Y.3d 992, 152 N.Y.S.3d 412, 174 N.E.3d 352 [2021]), the validity of the waiver of appeal at issue here need not detain us (see People v. West, 215 A.D.3d 1067, 1071 n 3, 186 N.Y.S.3d 854 [3d Dept. 2023];  People v. Merritt, 210 A.D.3d 1209, 1209, 178 N.Y.S.3d 254 [3d Dept. 2022];  see generally People v. McCall, 216 A.D.3d 1317, 1317, 189 N.Y.S.3d 788 [3d Dept. 2023]).  That said, defendant's assertion that the resulting plea was not knowing, intelligent and voluntary is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion – despite having ample opportunity to do so prior to sentencing (see People v. Dunbar, 218 A.D.3d 931, 932, 193 N.Y.S.3d 397 [3d Dept. 2023], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023];  People v. Barney, 215 A.D.3d 1137, 1139, 187 N.Y.S.3d 409 [3d Dept. 2023], lv denied 40 N.Y.3d 927, 192 N.Y.S.3d 508, 213 N.E.3d 650 [2023]).  Further, upon reviewing the record, we are satisfied that the narrow exception to the preservation requirement was not triggered (see People v. Lomack, 219 A.D.3d 1646, 1647–1648, 198 N.Y.S.3d 236 [3d Dept. 2023], lv denied 40 N.Y.3d 1040, 200 N.Y.S.3d 764, 223 N.E.3d 1240 [2023];  People v. White, 217 A.D.3d 1283, 1284, 192 N.Y.S.3d 316 [3d Dept. 2023]).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Clark, J.P., Aarons, Pritzker, Fisher and Mackey, JJ., concur.