Supreme Court, Appellate Division, Third Department, New York.
The PEOPLE of the State of New York, Respondent, v. Everrod MAIS, Also Known as Dizz, Mitch, YB and Youngblood, Appellant.
Decided: January 03, 2019
Before: Garry, P.J., Mulvey, Aarons, Rumsey and Pritzker, JJ.
Matthew A. Toporowski, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
MEMORANDUM AND ORDER
In full satisfaction of two indictments charging him with various crimes, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and criminal possession of a weapon in the second degree and waived his right to appeal. Supreme Court thereafter sentenced defendant to the agreed-upon aggregate prison term of eight years, to be followed by three years of postrelease supervision. Defendant appeals, and we affirm.
Defendant claims that his guilty plea and waiver of the right to appeal were involuntary due to the effects from the prescription sleep aid that he had consumed the night prior to entering the plea and executing the appeal waiver. Initially, we reject defendant's contention that his waiver of appeal was involuntary. Although defendant had previously taken the prescription medication, the transcript of his plea allocution demonstrated that he was lucid, rational and able to understand the consequences of his actions (see People v. Carbone, 101 A.D.3d 1232, 1234 n., 956 N.Y.S.2d 221 ; People v. Riley, 97 A.D.3d 982, 983, 947 N.Y.S.2d 917 , lv denied 20 N.Y.3d 935, 957 N.Y.S.2d 695, 981 N.E.2d 292 ; People v. Gomez, 72 A.D.3d 1337, 1338, 899 N.Y.S.2d 435  ).
Defendant's challenge to the voluntariness of his guilty plea survives his valid appeal waiver but was not preserved for our review as the record does not disclose that he made an appropriate postallocution motion (see People v. Milligan, 165 A.D.3d 1347, 1347, 85 N.Y.S.3d 616 ; People v. Sumter, 157 A.D.3d 1125, 1125, 70 N.Y.S.3d 253  ). Moreover, the narrow exception to the preservation rule is inapplicable because defendant did not make any statements during the plea colloquy that were inconsistent with his guilt (see People v. Milligan, 165 A.D.3d at 1347, 85 N.Y.S.3d 616; People v. Sumter, 157 A.D.3d at 1126, 70 N.Y.S.3d 253). Finally, although defendant's ineffective assistance of counsel claim survives the appeal waiver to the extent that it implicates the voluntariness of his plea, the absence of an appropriate postallocution motion renders it unpreserved for our review (see People v. Sumter, 157 A.D.3d at 1126, 70 N.Y.S.3d 253; People v. Baxter, 154 A.D.3d 1010, 1011, 60 N.Y.S.3d 855  ).
ORDERED that the judgment is affirmed.
Garry, P.J., Mulvey, Aarons and Pritzker, JJ., concur.
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