PEOPLE v. PUTMAN (2019)

MEMORANDUM AND ORDER

Defendant pleaded guilty to robbery in the second degree in full satisfaction of an 11–count indictment and waived the right to appeal.  He was thereafter sentenced, as a second felony offender, to the agreed-upon term of imprisonment of nine years, to be followed by five years of postrelease supervision, with the sentence to run concurrently with the sentence defendant was already serving.  Defendant appeals.

We affirm.  Defendant contends that both the waiver of the right to appeal and his guilty plea were not entered into knowingly, intelligently and voluntarily.  Initially, whether defendant's appeal waiver was knowing, intelligent and voluntary is of no consequence because defendant's challenge to the voluntariness of his guilty plea survives a valid waiver of the right to appeal (see People v. Simon, 166 A.D.3d 1075, 1076, 86 N.Y.S.3d 333 [2018];  People v. Howe, 150 A.D.3d 1321, 1322–1323, 54 N.Y.S.3d 190 [2017] ).  Although defendant's claim that his plea was involuntary because it was coerced survives an appeal waiver, the claim has not been preserved for our review as the record does not reflect that he made an appropriate postallocution motion (see CPL 220.60[3];  People v. Robinson, 161 A.D.3d 1218, 1219, 72 N.Y.S.3d 850 [2018], lv denied 31 N.Y.3d 1152, 83 N.Y.S.3d 434, 108 N.E.3d 508 [2018];  People v. Rutigliano, 159 A.D.3d 1280, 1280, 73 N.Y.S.3d 674 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ).  Moreover, the narrow exception to the preservation rule is inapplicable as defendant did not make any statements during the plea colloquy or sentencing proceeding that cast doubt upon his guilt, negated an element of the crime or called into question the voluntariness of his plea (see People v. Tucker, 164 A.D.3d 948, 950, 81 N.Y.S.3d 677 [2018];  People v. Kruppenbacher, 163 A.D.3d 1266, 1267, 80 N.Y.S.3d 740 [2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ).  In any event, were the issue before us, we would find that defendant's plea did not result from coercion and was knowingly, intelligently and voluntarily entered.

ORDERED that the judgment is affirmed.

Egan Jr., J.P.

Lynch, Aarons, Rumsey and Pritzker, JJ., concur.