                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    105648
________________________________

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

BERNARD EASTER,
                    Appellant.
________________________________


Calendar Date:    October 14, 2014

Before:    Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

                              __________


      James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

      P. David Soares, District Attorney (Steven Sharp of
counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered December 12, 2012 in Albany County, convicting defendant
upon his plea of guilty of the crime of course of sexual conduct
against a child in the first degree.

      Defendant pleaded guilty to the class B felony of course of
sexual conduct against a child in the first degree in
satisfaction of a multicount indictment charging him with sex
crimes against three victims, each under the age of 13. Pursuant
to the plea agreement, defendant waived his right to appeal and
Supreme Court agreed to impose a prison sentence of 11 years
followed by 10 years of postrelease supervision. The court then
sentenced him to the agreed-upon term and he now appeals.
                              -2-                105648

      Defendant's challenge to the voluntariness of his plea is
not preserved for our review because the record does not reflect
that he moved to withdraw the plea (see People v Watson, 110 AD3d
1110, 1110 [2013], lvs denied 22 NY3d 1157, 1160 [2014]; People v
Musser, 106 AD3d 1334, 1335 [2013], lv denied 22 NY3d 997 [2013];
People v Williams, 101 AD3d 1174, 1174 [2012]). Even assuming
that defendant's comment – made as he was about to be sworn in
prior to entering the plea – that "I can't do this" triggers the
narrow exception to the preservation requirement (see People v
Lopez, 71 NY2d 662, 666 [1988]), the record reflects that
defendant thereafter consulted with counsel, Supreme Court
thoroughly inquired as to whether he was being coerced and, based
on his unequivocal answers, was satisfied that he was freely and
voluntarily entering the plea (see People v Howard, 119 AD3d
1090, 1090 [2014], lv denied 24 NY3d 961 [2014]; People v
Goodell, 104 AD3d 1026, 1026-1027 [2013], lv denied 22 NY3d 1138
[2014]).

      To the extent that defendant challenges the waiver of
appeal, we find it valid. Supreme Court advised him of the
rights he was forfeiting, clearly distinguished those rights from
the rights given up as part of his plea and defendant signed a
written waiver in open court acknowledging that he had consulted
with counsel (see People v Musser, 106 AD3d at 1335; People v
Benson, 100 AD3d 1108, 1108 [2012]; People v Moreno, 86 AD3d 863,
864 [2011], lv denied 17 NY3d 954 [2011]). Inasmuch as the
appeal waiver is valid, it precludes defendant's challenge to
Supreme Court's denial of his suppression motion, as well as his
claim that his sentence was harsh and excessive (see People v
Watson, 110 AD3d at 1111; People v Musser, 106 AD3d at 1335;
People v Moreno, 86 AD3d at 864). Defendant's remaining
arguments have been considered and found to be unavailing.

     Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur.
                        -3-                  105648

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
