                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      105512B
________________________________

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

JUAN STEPHAN McCRAY,
                    Appellant.
________________________________


Calendar Date:   April 21, 2016

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

                             __________


     Elena Jaffe Tastensen, Saratoga Springs, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Schenectady
County (Giardino, J.), rendered August 13, 2010, convicting
defendant upon his plea of guilty of the crimes of burglary in
the first degree and assault in the first degree.

      In satisfaction of a 16–count indictment, defendant pleaded
guilty to burglary in the first degree and assault in the first
degree pursuant to a plea agreement that included a waiver of
appeal. The charges stem from a home invasion on November 8,
2009 during which defendant severely beat an 80-year-old woman,
causing serious physical injuries, and choked her 93-year-old
husband, thereafter stealing their personal property and vehicle.
Consistent with the agreement, County Court sentenced defendant,
as a persistent violent felony offender, to concurrent prison
                               -2-                105512B

terms of 22 years to life, and he now appeals.1

      Initially, defendant's claim that his guilty plea was not
knowing, voluntary and intelligent, which survives an appeal
waiver, was not preserved by an appropriate postallocution motion
to withdraw his plea (see CPL 220.60 [3]; People v Burritt, 127
AD3d 1433, 1434 [2015]). Contrary to his claim, when he
suggested during the plea allocution that he had been intoxicated
at the time of these crimes and had little recall of them, County
Court made extensive further inquiry establishing that he had
discussed potential defenses with counsel, understood that if he
pleaded guilty such defenses would never be considered, and
expressly waived an intoxication defense, thereafter
unequivocally allocuting to the crimes. Thus, the narrow
exception to the preservation requirement was not triggered here
(see People v Lopez, 71 NY2d 662, 664-665 [1988]; People v
Broomfield, 128 AD3d 1271, 1271-1272 [2015], lv denied 26 NY3d
1086 [2015]). Also unpreserved is his challenge to the factual
sufficiency of the plea and, in any event, he "was not required
to recite the elements of his crime or engage in a factual
exposition" as his "affirmative and unequivocal responses" to the
court's inquiries were sufficient (People v Davis, 136 AD3d 1220,
1221 [2016] [internal quotation marks and citation omitted]).

      With regard to defendant's claim that his plea was impacted
because he did not have his reading glasses that had been taken
into evidence upon his arrest, the record reflects that he was
provided with an alternate pair of eyeglasses, and his only
request was that his glasses be returned before he was sent to
prison. Nothing in the record supports his contention that this
affected his understanding of the evidence or plea terms or
undermined the voluntariness of his plea. In any event, were we
to address the foregoing claims challenging his plea, we would
find that he was adequately advised of the consequences of
entering a guilty plea, understood and freely accepted the plea
terms, and that his plea was a "knowing, voluntary and
intelligent choice among alternative courses of action" (People v


     1
        This Court rejected a previous Anders brief in this
appeal (119 AD3d 1235 [2014]).
                              -3-                  105512B

Conceicao, 26 NY3d 375, 382 [2015]; see People v Fiumefreddo, 82
NY2d 536, 543 [1993]; People v Taylor, 135 AD3d 1237, 1237
[2016]).

      We also find that defendant's appeal waiver is valid (see
People v Sanders, 25 NY3d 337, 340-341 [2015]). Prior to
eliciting an oral appeal waiver, County Court adequately
explained it to defendant, and thereafter ensured that he
reviewed the written waiver with counsel in court before signing
it, making clear that it was separate and distinct from the
rights automatically forfeited upon his guilty plea (see People v
Lopez, 6 NY3d 248, 256 [2006]; People v Miner, 120 AD3d 1449,
1450 [2014]). Given the valid appeal waiver, defendant's claim
that he was deprived of effective representation is precluded
except to the extent that it impacted upon the voluntariness of
his plea (see People v Lopez, 6 NY3d at 256). As he received an
advantageous plea and "nothing in the record casts doubt upon the
apparent effectiveness of counsel" (People v Beekman, 134 AD3d
1355, 1356 [2015] [internal quotation marks and citation
omitted]) or the voluntariness of his plea, we find that he was
afforded meaningful representation (see People v Benevento, 91
NY2d 708, 712 [1998]). Defendant's remaining claims also lack
merit.

     McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
