PEOPLE v. TUCKER (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered May 4, 2016, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal.  In accordance with the terms of the plea agreement, he was sentenced to 31/212 years in prison, followed by two years of postrelease supervision, to run concurrently to the sentence imposed on a prior youthful offender adjudication.  Defendant now appeals.

Initially, we find that defendant validly waived his right to appeal as he was advised of the separate and distinct nature of the waiver, acknowledged that he understood its consequences and executed a comprehensive written waiver in open court after conferring with counsel (see People v. Peterkin, 156 A.D.3d 962, 962–963, 64 N.Y.S.3d 617 [2017];  People v. White, 154 A.D.3d 1012, 1012–1013, 60 N.Y.S.3d 857 [2017], lv denied 30 N.Y.3d 1065, 71 N.Y.S.3d 15, 94 N.E.3d 497 [2017] ).  Defendant's challenge to the voluntariness of his guilty plea survives his appeal waiver, but has not been preserved for our review as the record does not disclose that he made an appropriate postallocution motion (see People v. Rayburn, 150 A.D.3d 1553, 1554, 55 N.Y.S.3d 512 [2017];  People v. Dolberry, 147 A.D.3d 1149, 1150, 46 N.Y.S.3d 437 [2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ).  Furthermore, the narrow exception to the preservation rule is inapplicable as defendant did not make statements that negated his guilt or called into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 666–667, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Blair, 136 A.D.3d 1105, 1106, 24 N.Y.S.3d 451 [2016], lvs denied 27 N.Y.3d 1066, 1072, 38 N.Y.S.3d 836, 843, 60 N.E.3d 1202, 1209 [2016] ).

Defendant further contends that he was deprived of the effective assistance of counsel by one attorney who was assigned to represent him and had a conflict of interest.  We are not persuaded.  County Court substituted other counsel to represent defendant well before defendant entered his guilty plea.  The attorney's representation was brief, had no direct impact on “the voluntariness of defendant's subsequent plea” and is therefore precluded by defendant's appeal waiver (People v. Santos–Rivera, 86 A.D.3d 790, 791, 927 N.Y.S.2d 236 [2011], lv denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011];  see People v. Trombley, 91 A.D.3d 1197, 1201, 937 N.Y.S.2d 665 [2012], lv denied 21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ).  Lastly, defendant's challenge to the severity of the sentence is foreclosed by his valid waiver of the right to appeal (see People v. Nichols, 155 A.D.3d 1186, 1187, 63 N.Y.S.3d 254 [2017];  People v. Blair, 136 A.D.3d at 1106, 24 N.Y.S.3d 451).  In view of the foregoing, we affirm the judgment of conviction.

ORDERED that the judgment is affirmed.

Devine, J.

Garry, P.J., Egan Jr., Aarons and Rumsey, JJ., concur.