                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 30, 2016                      105971
________________________________

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

ELLIOT HERNANDEZ,
                    Appellant.
________________________________


Calendar Date:   June 1, 2016

Before:   Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ.

                              __________


     Salvatore Adamo, Albany, for appellant.

      James R. Farrell, District Attorney, Monticello (Meagan K.
Galligan of counsel), for respondent.

                              __________


Aarons, J.

      Appeal from a judgment of the County Court of Sullivan
County (McGuire, J.), rendered January 30, 2013, convicting
defendant upon his plea of guilty of the crime of burglary in the
second degree (four counts).

      In full satisfaction of all charges brought against him,
defendant pleaded guilty to burglary in the second degree (four
counts) and, pursuant to the terms of the negotiated plea
agreement, executed a written waiver of his right to appeal in
open court. County Court thereafter sentenced him to concurrent
prison terms of seven years, to be followed by five years of
postrelease supervision. County Court also imposed certain
conditions of defendant's postrelease supervision, including that
he avail himself of any vocational opportunities, undergo health
                              -2-                105971

and drug and alcohol evaluations and follow any recommendations
required for a positive discharge. Defendant now appeals.

      Initially, contrary to defendant's contention, his waiver
of the right to appeal was valid. The record reflects that
County Court distinguished the right to appeal from the rights
automatically forfeited by a guilty plea, and defendant
acknowledged that he signed the written waiver after conferring
with counsel regarding its contents. Accordingly, defendant's
waiver of the right to appeal was knowing, intelligent and
voluntary (see People v Lopez, 6 NY3d 248, 256 [2006]; People v
Miller, 137 AD3d 1485, 1485 [2016]). Although defendant's
assertion that his guilty plea was not knowing, voluntary or
intelligent is not precluded by his waiver of appeal (see People
v Burritt, 127 AD3d 1433, 1434 [2015], lv denied 27 NY3d 994
[2016]; People v Guyette, 121 AD3d 1430, 1431 [2014], lv denied
27 NY3d 998 [2016]), his claim is not preserved for our review as
defendant failed to make an appropriate postallocution motion
(see People v Williams, 27 NY3d 212, 219-220 [2016]; People v
Buck, 136 AD3d 1117, 1118 [2016]). Nor did defendant's
statements during the plea allocution cast doubt upon his guilt
or negate an essential element of the crimes as to trigger the
narrow exception to the preservation requirement (see People v
Griffith, 136 AD3d 1114, 1114-1115 [2016]; People v Brown, 125
AD3d 1049, 1049-1050 [2015]).

      As to defendant's claims that he was denied the effective
assistance of counsel, they survive his appeal waiver to the
extent that they implicate the voluntariness of his guilty plea
(see People v Beverly, 137 AD3d 1421, 1422 [2016]; People v
Brown, 128 AD3d 1273, 1273-1274 [2015]), but defendant did not
preserve these claims for our review as there is no indication in
the record that defendant made an appropriate postallocution
motion (see People v Broomfield, 128 AD3d 1271, 1271-1272 [2015],
lv denied 26 NY3d 1086 [2015]; People v Turner, 126 AD3d 1228,
1229 [2015]; People v Guyette, 121 AD3d at 1432). With regard to
defendant's claim that defense counsel refused to file a motion
to withdraw defendant's guilty plea, this claim is based on
matters outside of the record and is more properly the subject of
a CPL article 440 motion (see People v Guyette, 121 AD3d at 1432;
see also People v Griffith, 136 AD3d at 1115).
                              -3-                105971

      Given defendant's valid appeal waiver, he is foreclosed
from challenging both County Court's decision to deny him
youthful offender status and the sentence as harsh and excessive
(see People v Pacherille, 25 NY3d 1021, 1023-1024 [2015]; People
v Lopez, 6 NY3d at 256; People v Bailey, 137 AD3d 1620, 1621
[2016]; People v Roberts, 134 AD3d 1352, 1352 [2015]). While
defendant's challenge to the $4,000 in fines imposed survives the
appeal waiver "because the amount of the fine[s] is not included
in the terms of the plea bargain set forth in the record" (People
v Etkin, 284 AD2d 579, 580-581 [2001], lv denied 96 NY2d 862
[2001]; see People v Ortiz, 104 AD3d 1202, 1203 [2013]),
defendant failed to object to the imposition of a fine at
sentencing or otherwise preserve his contention for our review
(see People v Wingo, 103 AD3d 1036, 1037 [2013], lv denied 21
NY3d 1021 [2013]; People v Trimm, 295 AD2d 640, 642 [2002], lv
denied 98 NY2d 732 [2002]; People v Carrillo, 257 AD2d 780, 783
[1999], lv denied 93 NY2d 967 [1999]).

      Finally, the People concede, and we agree, that because
only the Board of Parole is authorized to impose the conditions
of a term of a postrelease supervision (see Penal Law § 70.45
[3]; Executive Law §§ 259-c [2]; 259-i [3], [4]; People v Monk,
21 NY3d 27, 32 [2013]; People v Curry, 123 AD3d 1381, 1383-1384
[2014], lv denied 25 NY3d 950 [2015]), County Court erred to the
extent that it imposed certain conditions of defendant's
postrelease supervision at sentencing, and those conditions must
be stricken (see People v Curry, 123 AD3d at 1383-1384).

     Peters, P.J., Garry, Rose and Mulvey, JJ., concur.
                              -4-                  105971

      ORDERED that the judgment is modified, on the law, by
striking the conditions of postrelease supervision imposed as
part of the sentence; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
