                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 17, 2016                    107704
________________________________

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

MELISSA McKNIGHT,
                    Appellant.
________________________________


Calendar Date:   October 20, 2016

Before:   McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

                              __________


     Robert N. Gregor, Lake George, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Tracey A.
Brunecz of counsel), for respondent.

                              __________


Mulvey, J.

      Appeal from a judgment of the County Court of Schenectady
County (Drago, J.), rendered January 22, 2014, convicting
defendant upon her plea of guilty of the crime of robbery in the
first degree.

      In satisfaction of a five-count indictment, defendant
pleaded guilty to robbery in the first degree, admitting that she
forcibly stole property from a store clerk at knife point. The
plea agreement included an oral waiver of appeal and defendant
executed a written waiver of appeal in court during the plea
allocution. Consistent with the agreement, defendant was
sentenced to five years in prison with 2½ years of postrelease
supervision, and she now appeals.
                              -2-                107704

      We affirm. Defendant's contention that her guilty plea was
involuntary, which survives her appeal waiver,1 is unpreserved
for our review inasmuch as the record does not reflect that she
made an appropriate postallocution motion, despite an opportunity
to do so (see CPL 220.60 [3]; People v O'Keefe, 133 AD3d 1034,
1035 [2015], lv denied 26 NY3d 1148 [2016]; see also People v
Williams, 27 NY3d 212, 214, 219-222 [2016]). Moreover, defendant
did not make any statements during the plea allocution that
negated any element of the crime, otherwise cast doubt upon her
guilt or called into question the voluntariness of her plea so as
to trigger the narrow exception to the preservation rule (see
People v Williams, 27 NY3d at 220; People v Lopez, 71 NY2d 662,
666 [1988]; People v Forest, 141 AD3d 967, 969 [2016]). Rather,
the record reflects that, during the plea allocution, defendant
indicated that she understood the plea terms and had discussed
them with counsel, she then pleaded guilty without hesitation
conceding that she was in fact guilty and, under oath, admitted
committing the robbery. She gave no indication that she was
impaired at the time of the robbery so as to require an inquiry
regarding an intoxication defense (see People v Beblowski, 127
AD3d 1505, 1505 [2015], lv denied 26 NY3d 926 [2015]; compare
People v Osgood, 254 AD2d 571, 572 [1998]). Contrary to
defendant's argument, her statement at sentencing regarding her
history of drug use did not suggest that she had been using drugs
at the time of the robbery so as to require a further inquiry
(see People v Beaty, 22 NY3d 918, 921 [2013]; compare People v
DeCenzo, 132 AD3d 1160, 1161 [2015], lv denied 27 NY3d 996
[2016]; People v Maxson, 101 AD3d 1384, 1386 [2012]; People v
Thomson, 279 AD2d 644, 644-645 [2001]). Thus, County Court "had
no duty to conduct an inquiry concerning the potential defense of
intoxication based upon comments made by defendant during . . .
the sentencing proceeding" (People v Phillips, 30 AD3d 911, 911
[2006], lv denied 7 NY3d 869 [2006]).


    1
        While defendant challenges the waiver of appeal, all
issues argued in her brief survive that waiver and, in any event,
we are satisfied that the combined oral and written appeal waiver
was knowing, voluntary and intelligent (see People v Lopez, 6
NY3d 248, 256 [2006]; People v Belile, 137 AD3d 1460, 1461
[2016]).
                        -3-                  107704

McCarthy, J.P., Lynch, Devine and Aarons, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
