                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     104983
________________________________

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

ELIA JACKSON,
                    Appellant.
________________________________


Calendar Date:   May 28, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Devine, JJ.

                             __________


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

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

                             __________


Peters, P.J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered June 29, 2011, convicting defendant upon
her plea of guilty of the crime of attempted assault in the first
degree.

      In satisfaction of a three-count indictment, defendant
entered into a negotiated plea agreement pursuant to which she
entered a guilty plea to a reduced count of attempted assault in
the first degree. The charges arose from defendant's admitted
conduct in intentionally striking the victim with her car while
driving, causing serious physical injuries. As part of the
agreement, defendant waived her right to appeal the conviction
and sentence and, in exchange, was promised a prison sentence of
                                 -2-                104983

no more than nine years but not less than 3½ years, with three
years of postrelease supervision. County Court imposed a
sentence of 8½ years in prison, with three years of postrelease
supervision, restitution and other terms. Defendant now appeals.

      Initially, defendant argues that her appeal waiver and
guilty plea were not knowing, voluntary and intelligent. A
review of the plea colloquy establishes that defendant made a
voluntary and knowing choice to waive her right to appeal (see
People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6
NY3d 248, 256 [2006]; People v Callahan, 80 NY2d 273, 279-280
[1992]).1 While defendant's challenge to the voluntariness of
her plea survives that appeal waiver (see People v Seaberg, 74
NY2d 1, 10 [1989]), the record on appeal does not reflect that
she challenged her guilty plea on this ground in a motion to
withdraw her plea and, as such, this claim is unpreserved for
appellate review (see People v Watson, 115 AD3d 1016, 1017
[2014]; People v White, 104 AD3d 1056, 1056 [2013], lvs denied 21
NY3d 1018, 1021 [2013]). In any event, we find that the plea was
knowing, voluntary and intelligent (see People v Tyrell, 22 NY3d
359, 365-366 [2013]; People v Fiumefreddo, 82 NY2d 536, 543
[1992]).

      Finally, given that County Court abided by its sentencing
commitment, defendant's challenge to the sentence as harsh and
excessive is precluded by her valid and unqualified appeal waiver
(see People v Lopez, 6 NY3d at 255-256; People v Martin, 105 AD3d
1266, 1267 [2013]).

         Lahtinen, Garry, Rose and Devine, JJ., concur.




     1
        The written waiver of appeal, which the record reflects
was signed and discussed in open court, is not included in the
record on appeal.
                        -3-                  104983

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
