PEOPLE v. HARRINGTON (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Milano, J.), rendered May 15, 2015 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In full satisfaction of an indictment charging him with various crimes, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and executed a waiver of the right to appeal.  Consistent with the terms of the plea agreement, defendant was subsequently sentenced, as a second felony drug offender, to a prison term of four years to be followed by two years of postrelease supervision.  Defendant appeals.

We affirm.  Initially, we reject defendant's claim that his waiver of the right to appeal was invalid.  County Court explained that the right to appeal was separate and distinct from the rights automatically forfeited by a guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Hess, 150 A.D.3d 1560, 1560, 52 N.Y.S.3d 686 [2017] ), and the record further reflects that defendant executed a detailed written appeal waiver and acknowledged that he had discussed the waiver with counsel and understood it (see 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];  People v. Simmons, 159 A.D.3d 1270, 1271, 73 N.Y.S.3d 681 [2018] ).  Accordingly, we find that defendant's combined oral and written waiver of appeal was knowing, intelligent and voluntary (see People v. Wood, 161 A.D.3d 1447, 1448, 77 N.Y.S.3d 763 [2018];  People v. Baxter, 154 A.D.3d 1010, 1011, 60 N.Y.S.3d 855 [2017] ).

Defendant's contention that his plea was coerced or involuntary because of his incarceration and inability to obtain bail survives his valid appeal waiver but is not preserved for our review, as there is no indication in the record that he made an appropriate postallocution motion (see People v. McRae, 150 A.D.3d 1328, 1329, 51 N.Y.S.3d 434 [2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017];  People v. Rich, 10 A.D.3d 739, 740, 781 N.Y.S.2d 536 [2004] ).  Moreover, the narrow exception to the preservation rule is inapplicable as defendant's “recitation of the facts underlying the crime pleaded to” did not “cast[ ] significant doubt upon defendant's guilt or otherwise call[ ] 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 [1988];  see 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] ).  The transcript of the plea proceedings reflects that defendant was advised of the consequences of pleading guilty, that he understood those consequences and that he was not threatened, forced or coerced in any way to plead guilty and was “pleading guilty under [his] own decision.”  Furthermore, defendant never mentioned or gave any indication that his incarceration during the pendency of these proceedings or his failed attempt to obtain bail were factors that affected or influenced his decision to plead guilty (see People v. Zabawczuk, 128 A.D.3d 1267, 1268, 11 N.Y.S.3d 692 [2015], lv denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 [2015];  People v. Rich, 10 A.D.3d at 740, 781 N.Y.S.2d 536;  compare People v. Grant, 61 A.D.3d 177, 182–184, 873 N.Y.S.2d 355 [2009] ).  Accordingly, there is no basis in the record before us to disturb the judgment of conviction.

ORDERED that the judgment is affirmed.

Lynch, J.

Garry, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.