| People v Constantopoules |
| 2016 NY Slip Op 05589 [141 AD3d 942] |
| July 21, 2016 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Calvin Constantopoules, Also Known as Calvin Constantopoulos, Also Known as Forty, Appellant. |
Timothy S. Brennan, Schenectady for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered January 8, 2014, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to the reduced charge of attempted criminal possession of a
controlled substance in the third degree in full satisfaction of a four-count indictment
pursuant to a plea agreement that included a waiver of the right to appeal. Consistent
with the agreement, County Court thereafter sentenced defendant, as a second felony
offender, to six years in prison to be followed by 2
We affirm. Initially, we reject defendant's challenge to the validity of his appeal waiver, as the plea colloquy and the written waiver executed in open court demonstrate that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v Crispell, 136 AD3d 1121, 1122 [2016]; People v Donah, 127 AD3d 1413, 1413 [2015]). Defendant's valid waiver of the right to appeal precludes his claim that his sentence is harsh and excessive (see People v Clark, 135 AD3d 1239, 1240 [2016], lv denied 27 NY3d 995 [2016]; People v Clapper, 133 AD3d 1037, 1038 [2015], lv denied 27 NY3d 995 [2016]).
[*2] Defendant's claims that his guilty plea was not knowingly, intelligently and voluntarily entered and that he was denied the effective assistance of counsel are unpreserved for our review, as the record does not indicate that he made an appropriate postallocution motion (see People v Almeida, 127 AD3d 1499, 1500 [2015], lv denied 26 NY3d 1006 [2015]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]). Regarding the plea, the narrow exception to the preservation rule is inapplicable, inasmuch as defendant did not make any statements during the plea allocution that negated a material element of the crime or otherwise cast doubt upon his guilt (see People v Atkinson, 124 AD3d 1149, 1150 [2015], lv denied 25 NY3d 949 [2015]; People v Lewis, 118 AD3d 1125, 1125-1126 [2014], lv denied 24 NY3d 1003 [2014]).
Peters, P.J., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.