Supreme Court, Appellate Division, Third Department, New York.
The PEOPLE of the State of New York, Respondent, v. John PERYEA, Appellant.
Decided: February 07, 2019
Before: Egan Jr., J.P., Lynch, Devine, Rumsey and Pritzker, JJ.
Aaron A. Louridas, Delmar, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), for respondent.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered March 3, 2014 in Clinton County, convicting defendant upon his plea of guilty of the crime of predatory sexual assault against a child.
Defendant pleaded guilty to a single-count indictment charging him with predatory sexual assault against a child and waived his right to appeal. He was sentenced as a second felony offender, in accordance with the plea agreement, to a prison term of 15 years to life. Defendant appeals.
We are unpersuaded by defendant's contention that the waiver of the right to appeal is invalid. The record reflects that Supreme Court advised defendant during the plea colloquy that a waiver of the right to appeal was a condition of the plea agreement. The court explained the separate and distinct nature of the waiver of the right to appeal, which defendant acknowledged he understood. Even absent a written appeal waiver, we find that the oral colloquy was sufficient to establish that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 254, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Handly, 122 A.D.3d 1007, 1008, 995 N.Y.S.2d 415 ; People v. Smith, 81 A.D.3d 1034, 1035, 916 N.Y.S.2d 293 , lv denied 16 N.Y.3d 899, 926 N.Y.S.2d 35, 949 N.E.2d 983  ). Defendant's challenge to the factual sufficiency of the plea allocution and the severity of the agreed-upon sentence are precluded by the valid appeal waiver (see People v. Sullivan, 153 A.D.3d 1519, 1520, 62 N.Y.S.3d 552 , lv denied 30 N.Y.3d 1064, 71 N.Y.S.3d 14, 94 N.E.3d 496 ; People v. Mahon, 148 A.D.3d 1303, 1304, 48 N.Y.S.3d 842  ).
Although defendant's challenges to the voluntariness of the plea and the effective assistance of his counsel — to the extent that the latter impacts the voluntariness of the plea — are not precluded by the appeal waiver, they are nevertheless unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Tyrell, 22 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Jawan, 165 A.D.3d 1350, 1351, 82 N.Y.S.3d 905  ). Further, the narrow exception to the preservation requirement is not implicated here as defendant made no statements during the plea allocution that “clearly cast[ ] significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the plea” (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. McDonald, 165 A.D.3d 1327, 1328, 83 N.Y.S.3d 751  ).
ORDERED that the judgment is affirmed.
Egan Jr., J.P., Lynch, Rumsey and Pritzker, JJ., concur.
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