                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    105645
________________________________

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

JESSE BLACKMON,
                    Appellant.
________________________________


Calendar Date:    October 9, 2014

Before:   Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

                              __________


     Aaron A. Louridas, Delmar, for appellant.

      Derek P. Champagne, District Attorney, Malone (Glenn
MacNeill of counsel), for respondent.

                              __________


Garry, J.

      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered March 29, 2012, convicting
defendant upon his plea of guilty of the crime of criminal sale
of a controlled substance in the fourth degree.

      In satisfaction of a two-count indictment, defendant
pleaded guilty to criminal sale of a controlled substance in the
fourth degree and waived his right to appeal. In accord with the
plea agreement, he was sentenced as a second felony offender to
three years in prison, to be followed by three years of
postrelease supervision. Defendant appeals.

      Initially, we note that, although defendant waived his
right to appeal, his waiver is invalid as he was not advised that
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the waiver was separate and distinct from the other rights that
he was forfeiting by pleading guilty (see People v Lopez, 6 NY3d
248, 256 [2006]; People v Moyett, 7 NY3d 892, 892-893 [2006];
People v Hill, 118 AD3d 1191, 1192 [2014]). Turning to his
substantive contentions, defendant asserts that his guilty plea
was not knowing, voluntary and intelligent. Although defendant
failed to preserve this claim by making an appropriate
postallocution motion (see People v Vandemark, 117 AD3d 1339,
1340 [2014], lv denied 24 NY3d 965 [2014]), we are required to
examine further, as he argues that the narrow exception to the
preservation requirement was triggered by his statements in the
course of the plea colloquy negating an essential element of the
crime to which he pleaded guilty (see People v Worden, 22 NY3d
982, 985 [2013]; People v Lopez, 71 NY2d 662, 666 [1988]; People
v Zabele, 53 AD3d 685, 686 [2008]).

      Defendant pleaded guilty to criminal sale of a controlled
substance in the fourth degree (see Penal Law § 220.34). During
the plea allocution, he related that he was pleading guilty
"under false pretenses" and stated, "I wasn't selling nothing, I
was bringing it to someone else." County Court responded by
advising defendant that "[t]he law defines a sale as any
transfer, any giving, selling, transferring" and noted that "[i]t
doesn't have to be for money, it doesn't have to be for anything
of value" (see Penal Law § 220.00 [1]). Defendant thereafter
replied that he was aware of this and, in response to further
inquiry by the court, admitted that he had engaged in such
conduct. Upon review, we find that the court's further inquiries
and defendant's responses were adequate to dispel any doubt as to
defendant's understanding of the nature of the charge, and to
ensure that his plea was intelligently entered (compare People v
Ocasio, 265 AD2d 675, 678 [1999]). Thus, we find the exception
inapplicable.

      The record of defendant's participation at both the plea
proceeding and arraignment does not support his further
contention that he was deprived of the effective assistance of
counsel due to his attorney's failure to request a CPL article
730 competency hearing. Defendant is presumed competent, and a
history of mental illness and substance abuse does not
necessarily rebut this presumption (see People v Bennett, 30 AD3d
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631, 631 [2006], lv denied 7 NY3d 809 [2006]; People v Medina,
249 AD2d 694, 694 [1998]). No record evidence suggests that
defense counsel's decision was not "a sound defense strategy," or
that defendant was otherwise deprived of meaningful
representation (People v Barclay, 1 AD3d 705, 707 [2003], lv
denied 1 NY3d 567 [2003] [internal quotation marks and citations
omitted]). Defendant's counsel ultimately negotiated a favorable
plea agreement that substantially reduced his sentencing exposure
(see People v Leszczynski, 96 AD3d 1162, 1162-1163 [2012], lv
denied 19 NY3d 998 [2012]). The sentence was imposed in accord
with that agreement and, considering defendant's prior criminal
history, we find his claim that it was harsh and excessive
without merit (see People v Sherald, 45 AD3d 973 [2007], lv
denied 10 NY3d 771 [2008]).

     Stein, J.P., Rose, Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
