                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 19, 2015                    106859
________________________________

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

NICHOLAS C. PANDORI,
                    Appellant.
________________________________


Calendar Date:    October 19, 2015

Before:    McCarthy, J.P., Rose, Devine and Clark, JJ.

                              __________


     Linda A. Berkowitz, Saratoga Springs, for appellant.

      M. Elizabeth Coreno, Special Prosecutor, Saratoga Springs,
for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered May 13, 2014, convicting defendant
upon his plea of guilty of the crime of grand larceny in the
third degree.

      Defendant waived indictment, pleaded guilty to      a superior
court information charging him with grand larceny in      the third
degree and waived his right to appeal. County Court       thereafter
sentenced him to five years of probation. Defendant       now appeals.

      We affirm. Initially,     we reject defendant's contention
that his waiver of the right    to appeal was invalid. Both County
Court and the written waiver    informed him of the separate and
distinct nature of the right    to appeal, and County Court
                              -2-                  106859

confirmed that defendant had discussed the waiver with counsel
and understood its ramifications. Therefore, we conclude that
defendant knowingly, intelligently and voluntarily waived the
right to appeal his conviction and sentence (see People v
Fligger, 117 AD3d 1343, 1344 [2014], lv denied 23 NY3d 1061
[2014]; People v Chavis, 117 AD3d 1193, 1193-1194 [2014]).
Although defendant's remaining claim – that his plea was not
voluntarily entered due to the ineffective assistance of counsel
– survives his appeal waiver, it is unpreserved for our review as
the record does not reflect that he made an appropriate
postallocution motion (see People v Smith, 119 AD3d 1088, 1089
[2014], lv denied 24 NY3d 1089 [2014]; People v Livziey, 117 AD3d
1341, 1342 [2014]). To the extent that his claim addresses
matters outside the record, they are more properly the subject of
a CPL article 440 motion (see People v Stroman, 107 AD3d 1023,
1025 [2013], lv denied 21 NY3d 1046 [2013]; People v Planty, 85
AD3d 1317, 1318 [2011], lv denied 17 NY3d 820 [2011]).

     McCarthy, J.P., Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
