                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: September 29, 2016                 107196
________________________________

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

JAMES HAKKENBERG,
                    Appellant.
________________________________


Calendar Date:   September 9, 2016

Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                              __________


     Sandra M. Colatosti, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                              __________


Devine, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), entered June 24, 2014, convicting defendant upon
his plea of guilty of the crime of burglary in the second degree.

      In satisfaction of a six-count indictment, defendant
pleaded guilty to burglary in the second degree and waived his
right to appeal. County Court imposed the agreed-upon prison
sentence of 12 years with five years of postrelease supervision
and ordered defendant to pay restitution. Defendant appeals.

      We affirm. Initially, defendant argues that his guilty
plea was involuntary because he was not informed about his
predicate sentencing status. This claim was not adequately
preserved for our review by a timely postallocution motion to
                              -2-                107196

withdraw his plea (see People v Lewis, 138 AD3d 1346, 1347
[2016]).1 Defendant, in any event, was made aware during the
plea colloquy that his prior felony convictions may or may not
result in second felony offender sentencing and that his status
in that regard, which would not affect the agreed-upon sentence,
would be determined at sentencing. County Court determined at
sentencing that defendant's prior convictions did not qualify him
for predicate sentencing and imposed the promised sentence.
Under these circumstances, were we to address this claim, we
would find that his guilty plea was voluntary, knowing and
intelligent (see People v Haffiz, 19 NY3d 883, 884 [2012];
People v Medina, 129 AD3d 1385, 1386 [2015], lv denied 26 NY3d
1090 [2015]).

      Defendant also contends that County Court erred in denying
his motions to suppress his statements to police and DNA
evidence. However, these challenges to adverse suppression
rulings are precluded by defendant's knowing, voluntary and
intelligent waiver of appeal (see People v Sanders, 25 NY3d 337,
342 [2015]; People v Zippo, 136 AD3d 1222, 1222 [2016], lv denied
27 NY3d 1141 [2016]). A review of the record establishes that
the court explained the nature and consequences of the appeal
waiver, ascertained that defendant understood it and had
discussed it with counsel, then observed defendant sign a
detailed written waiver in open court. Defendant's unqualified
appeal waiver was therefore valid and forecloses these claims
(see People v Sanders, 25 NY3d at 341-342). His challenge to the
agreed-upon sentence as harsh and excessive is likewise precluded
by the appeal waiver (see People v Lopez, 6 NY3d 248, 256
[2006]). Finally, while his challenge to the amount of the
restitution awarded survives his appeal waiver because the amount
was not specified in the plea agreement, it is unpreserved for
our review as he did not request a hearing or challenge the
amount of restitution at sentencing (see People v Horne, 97 NY2d


    1
        Defendant's pro se oral motion to withdraw his plea was
not made "before the imposition of sentence" and was untimely
(CPL 220.60 [3]). His further claim of ineffective assistance of
counsel is, accordingly, also unpreserved for our review (see
People v Houck, 74 AD3d 1476, 1477 [2010]).
                              -3-                  107196

404, 414 n 3 [2002]; People v Melendez, 138 AD3d 1159, 1161
[2016], lv denied 27 NY3d 1136 [2016]). Defendant's remaining
claims also lack merit.

     McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
