                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 9, 2017                   107542
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ALBERT W. WOODS,
                    Appellant.
________________________________


Calendar Date:   January 18, 2017

Before:   McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.

                             __________


     Jacob Vredenburgh, Albany, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Tracey A.
Brunecz of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the County Court of Schenectady
County (Loyola, J.), rendered January 28, 2015, convicting
defendant upon his plea of guilty of the crime of assault in the
second degree.

      In satisfaction of a 13-count indictment, defendant pleaded
guilty to assault in the second degree pursuant to a plea
agreement that included a waiver of appeal. Consistent with that
agreement, defendant was sentenced to a prison term of three
years with five years of postrelease supervision. Defendant now
appeals.

      We affirm. Initially, we agree with defendant that his
waiver of appeal was not knowing, voluntary or intelligent (see
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People v Lopez, 6 NY3d 248, 256 [2006]). County Court (Giardino,
J.) did not elicit an oral waiver or discuss on the record the
meaning or consequences of the waiver or its separate and
distinct nature (see id.). The written waiver of appeal signed
during the plea allocution is likewise deficient, as the court
failed to ascertain if defendant had read it, was aware of its
contents or had discussed it with his attorney (see People v
Bradshaw, 18 NY3d 257, 264 [2011]; People v Larock, 139 AD3d
1241, 1242 [2016], lv denied 28 NY3d 932 [2016]).

      However, defendant's challenge to the voluntariness and
factual sufficiency of his guilty plea is unpreserved for our
review in the absence of an appropriate postallocution motion
raising this claim, and the record does not reflect that he made
any statements during the colloquy that triggered the narrow
exception to the preservation requirement (see CPL 220.60 [3];
People v Williams, 27 NY3d 212, 219 [2016]; People v Lopez, 71
NY2d 662, 666 [1988]; People v Larock, 139 AD3d at 1242; People v
Velazquez, 125 AD3d 1063, 1064 [2015], lv denied 25 NY3d 993
[2015]). Were the issue properly before us, we would find that
the plea was knowing, voluntary and intelligent (see People v
Conceicao, 26 NY3d 375, 382 [2015]; People v Fiumefreddo, 82 NY2d
536, 543 [1993]). Contrary to defendant's claim, his statement
during the colloquy that he was taking anxiety medicine that
"calms" him does not support the conclusion that he was taking
medication that "clouded his judgment so as to render him
incapable of voluntarily entering a guilty plea" (People v Duffy,
126 AD3d 1142, 1142 [2015]; compare People v Hennessey, 111 AD3d
1166, 1167 [2013]). Further, "an allocution based on a
negotiated plea need not elicit from a defendant specific
admissions as to each element of the charged crime," and the
record reflects that defendant understood the charge and "made an
intelligent decision to enter a plea" (People v Goldstein, 12
NY3d 295, 301 [2009]; see People v MacDonald, 113 AD3d 968, 968
[2014]).

      Finally, defendant's contention that County Court (Loyola,
J.) improperly sentenced him as a second felony offender and
failed to comply with the provisions of CPL 400.21 is unpreserved
for our review, as he did not object at sentencing despite the
opportunity to do so (see People v Lowell, 126 AD3d 1235 [2015],
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lv denied 25 NY3d 1167 [2015]; People v Morse, 111 AD3d 1161,
1161-1162 [2013], lv denied 23 NY3d 1040 [2014]). Given that
defendant was advised during the plea allocution that he would be
sentenced as a second felony offender and admitted the predicate
conviction, corrective action in the interest of justice is not
warranted (see People v Lowell, 126 AD3d at 1235).

     McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
