                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:   November 17, 2016               106940
                                                       108001
________________________________

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

RICHARD ODDY II,
                    Appellant.
________________________________


Calendar Date:   October 19, 2016

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

                             __________


     Theresa M. Suozzi, Saratoga Springs, for appellant.

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

                             __________


Mulvey, J.

      Appeals (1) from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered July 23, 2013, convicting
defendant upon his plea of guilty of the crime of criminal sexual
act in the first degree, and (2) by permission, from an order of
said court (Murphy, J.), entered December 22, 2015, which denied
defendant's motion pursuant to CPL 440.10 to vacate the judgment
of conviction, without a hearing.

      In August 2012, defendant was charged in a 14-count
indictment with predatory sexual assault (four counts), sexual
abuse in the first degree (four counts), sexual abuse in the
third degree (two counts) and endangering the welfare of a child
(four counts). The charges stemmed from allegations that
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defendant engaged in sexual acts with several female children
left in his care at his residence. In satisfaction of the
charges, defendant pleaded guilty pursuant to a plea agreement to
one count of criminal sexual act in the first degree. As
required by the plea agreement, defendant also executed a written
waiver of appeal in open court. Consistent with the terms of the
plea agreement, County Court (Scarano, J.) sentenced defendant to
a prison term of 14 years to be followed by 20 years of
postrelease supervision. Defendant subsequently moved pursuant
to CPL article 440 to vacate the judgment of conviction,
claiming, among other things, that his plea was not entered
knowingly, intelligently and voluntarily and that he received
ineffective assistance of counsel. County Court (Murphy, J.)
denied the motion, and defendant now appeals from the judgment
and, with permission, from the order denying his motion to
vacate.

      We affirm. Initially, defendant's waiver of the right to
appeal was valid. The record reflects that County Court
(Scarano, J.) distinguished the right to appeal as "separate and
distinct" 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, contrary to defendant's contention, defendant's
waiver of the right to appeal was knowing, intelligent and
voluntary (see People v Lopez, 6 NY3d 248, 256 [2006]; People v
Woods, 141 AD3d 954, 955 [2016]; People v Miller, 137 AD3d 1485,
1485 [2016]; People v Fligger, 117 AD3d 1343, 1344 [2014], lv
denied 23 NY3d 1061 [2014]). As such, although defendant's
challenge to County Court's denial of his motion to suppress
incriminating statements that he made to a police investigator
survives his guilty plea (see CPL 710.70 [2]; People v Henry, 133
AD3d 1085, 1086 [2015]), it is foreclosed by the valid appeal
waiver, which provided that defendant waived his right to appeal
the judgment of conviction on the basis of, among other things,
the voluntariness of any statements made by him (see People v
Simmons, 129 AD3d 1200, 1201 [2015], lv denied 27 NY3d 1075
[2016]; People v Dozier, 115 AD3d 1001, 1001-1002 [2014], lvs
denied 24 NY3d 1082, 1083 [2014]; People v Boyce, 2 AD3d 1208,
1208 [2003], lv denied 2 NY3d 737 [2004]). Similarly,
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                                                  108001

defendant's arguments on his direct appeal that the sentence was
harsh and excessive and that he received ineffective assistance
of counsel are precluded by the valid waiver of appeal in which
he expressly waived his right to seek appellate review of both
the sentence and the effectiveness of counsel (see People v
Lopez, 6 NY3d at 256; People v Woods, 141 AD3d at 955; People v
Brasmeister, 136 AD3d 1122, 1123 [2016], lv denied 27 NY3d 993
[2016]).1

      Turning to defendant's contention that his plea was not
voluntary or knowingly made, while this claim survives the valid
appeal waiver (see People v Mann, 140 AD3d 1532, 1533 [2016];
People v McCray, 139 AD3d 1235, 1235-1236 [2016]), he failed to
preserve his challenge for our review by an appropriate
postallocution motion pursuant to CPL 220.60 (3), despite having
adequate opportunity to do so during the months between his
guilty plea and sentencing (see People v Forest, 141 AD3d 967,
968 [2016]; People v Mann, 140 AD3d at 1533). In addition, based
upon our review of the transcript of the plea colloquy, we find
that the narrow exception to the preservation rule is
inapplicable because defendant made no statement during the plea
allocution that was inconsistent with his guilt or otherwise
called into question the voluntariness of his plea (see People v
Zakrzewski, 140 AD3d 1536, 1537 [2016]; People v Beverly, 140
AD3d 1400, 1401 [2016], lvs denied 28 NY3d 927, 933 [2016]).




      1
         To the extent that defendant's ineffective assistance of
counsel claim on his direct appeal implicates the voluntariness
of his plea and thus survives the appeal waiver, given the
absence in the record of an appropriate postallocution motion,
this claim is unpreserved for our review (see People v Austin,
141 AD3d 956, 957-958 [2016]; People v Lobaton, 140 AD3d 1534,
1535 [2016], lv denied 28 NY3d 972 [2016]; People v Clark, 135
AD3d 1239, 1240 [2016], lv denied 27 NY3d 995 [2016]).
                              -4-                106940
                                                 108001

      Finally, we find no error in the denial of defendant's
motion pursuant to CPL 440.10 to vacate the judgment of
conviction based upon the alleged ineffective assistance of trial
counsel. Defendant's motion is premised primarily upon
allegations that his counsel pressured him to accept the plea
agreement and to plead guilty and that counsel failed to properly
investigate possible defenses. Notwithstanding defendant's
contentions, the transcript of the plea colloquy demonstrates
that defendant was advised of his trial-related rights, that he
was informed by County Court that no one could force him to plead
guilty and that he was aware that he was giving up his rights by
pleading guilty (see People v Currier, 137 AD3d 1428, 1429-1430
[2016], lv denied 27 NY3d 1131 [2016]; People v Ryder, 136 AD3d
1109, 1110 [2016], lv denied 27 NY3d 1005 [2016]; People v Stone,
9 AD3d 498, 499 [2004], lv denied 3 NY3d 712 [2004]).
Furthermore, as the record reflects that defendant's counsel made
appropriate pretrial challenges to the grand jury proceedings, to
the indictment and to defendant's incriminating statements that
he made to a police investigator, in addition to securing a
favorable plea deal, there is nothing in the record that calls
into question counsel's effectiveness (see People v Stahl, 141
AD3d 962, 966-967 [2016]). Nor has defendant demonstrated, given
his plea of guilty to the crime of criminal sexual act in the
first degree (see Penal Law § 130.50), that the nonrecord factual
allegations in the proffered affidavits, if true, would entitle
him to relief (see People v Decker, 139 AD3d 1113, 1117 [2016],
lv denied 28 NY3d 928 [2016]). The balance of defendant's claims
raised in his CPL 440.10 motion are claims that were capable of
being raised in his direct appeal, which we have considered, and
are therefore foreclosed for review in a CPL 440.10 motion (see
CPL 440.10 [2] [c]; People v Lewis, 138 AD3d 1346, 1348 n 3
[2016]; People v Rebelo, 137 AD3d 1315, 1316 [2016], lv denied 28
NY3d 936 [2016]). Defendant's remaining claims have been
considered and found to be without merit.

     Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur.
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                                             108001

ORDERED that the judgment and order are affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
