State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 29, 2015 106271
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
SHAHEAN A. ATKINSON,
Appellant.
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Calendar Date: December 16, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.
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John P.M. Wappett, Public Defender, Lake George (Marcy I.
Flores of counsel), for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee
B. Davenport of counsel), for respondent.
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McCarthy, J.
Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered June 26, 2013, convicting defendant upon
his plea of guilty of the crime of criminal sale of a controlled
substance in the third degree.
Defendant waived indictment and was charged in a superior
court information with criminal sale of a controlled substance in
the third degree. He pleaded guilty to this charge and waived
his right to appeal, both orally and in writing. He was
sentenced in accordance with the plea agreement to four years in
prison, to be followed by two years of postrelease supervision.
Defendant appeals.
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Defendant challenges the factual sufficiency of his plea
allocution as well as the severity of his sentence. A valid
waiver of the right to appeal precludes a defendant from raising
these claims (see People v Torres, 117 AD3d 1497, 1498 [2014],
lvs denied 24 NY3d 963, 965 [2014]; People v Perry, 50 AD3d 1244,
1245 [2008], lv denied 10 NY3d 963 [2008]). However, the record
here reveals that defendant's appeal waiver was deficient
inasmuch as he was not clearly advised that the right to appeal
was separate and distinct from the other rights that he was
forfeiting by pleading guilty, and County Court did not make a
proper inquiry to confirm that defendant had been advised and
understood the significance of the written waiver (see People v
Chappelle, 121 AD3d 1166, 1167 [2014]; People v Burgette, 118
AD3d 1034, 1035 [2014]). In view of this, defendant is not
foreclosed from raising these claims. Nevertheless, the record
does not indicate that defendant moved to withdraw his guilty
plea based upon the factual insufficiency of the allocution,
which he now asserts, and for this reason his claim regarding the
factual sufficiency of his plea is not preserved (see People v
Wasley, 119 AD3d 1216, 1216 [2014], lv denied 24 NY3d 1048
[2014]; see also People v O'Neill, 116 AD3d 1240, 1241 [2014]).
The narrow exception to the preservation rule is inapplicable
inasmuch as the record does not disclose that defendant made
statements casting doubt upon his guilt or negating a material
element of the crime (see People v Rouse, 119 AD3d 1161, 1162-
1163 [2014]; People v Pearson, 110 AD3d 1116, 1116 [2013]).
As for the sentence, it is neither harsh nor excessive.
Defendant has a lengthy criminal record and he agreed to the
sentence as part of the plea bargain. Consequently, we find no
extraordinary circumstances nor any abuse of discretion
warranting a reduction of the sentence in the interest of justice
(see People v Lussier, 109 AD3d 1023 [2013]; People v Rose, 79
AD3d 1365, 1367 [2010]).
Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.
-3- 106271
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court