                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   105427
________________________________

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

RAQUAN BANKS,
                    Appellant.
________________________________


Calendar Date:   October 15, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

                             __________


     Bruce Evans Knoll, Albany, for appellant.

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

                             __________


Garry, J.

      Appeal from a judgment of the Supreme Court (Teresi, J.),
entered July 25, 2012 in Schenectady County, convicting defendant
upon his plea of guilty of the crime of manslaughter in the first
degree.

      Defendant was charged in an indictment with numerous
counts, including two counts of murder in the second degree,
after firing a handgun into a crowd of people and killing a man
in May 2008. After his incarceration on those charges, he was
charged in a second indictment with two counts of robbery in the
second degree and two counts of assault in the second degree in
connection with a 2011 incident at the Schenectady County
Correctional Facility. Following the denial of his motion to
suppress both identification evidence and various statements that
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he made to police, defendant pleaded guilty to manslaughter in
the first degree in satisfaction of the first indictment and
robbery in the second degree in satisfaction of the second
indictment, and waived his right to appeal. Supreme Court
informed defendant that it intended to sentence him to a
determinate prison term between 20 to 24 years on the
manslaughter charge, and five years in prison on the robbery
charge, to run concurrently and to be followed by five years of
postrelease supervision.

      Thereafter, defendant moved to vacate his plea to robbery
in the second degree on the ground that, among other things, his
allocution was insufficient. The People did not oppose the
motion, conceded that the allocution did not sufficiently address
the elements of robbery, and indicated that they were willing to
accept defendant's plea to manslaughter in the first degree in
full satisfaction of both indictments. County Court then granted
defendant's motion, dismissed the second indictment setting forth
the robbery charges, sentenced him to 24 years in prison to be
followed by five years of postrelease supervision, and imposed
restitution. Defendant appeals, and we affirm.

      Initially, we reject defendant's argument that his plea of
guilty to manslaughter in the first degree was not knowingly,
voluntarily and intelligently made. As defendant concedes, this
issue is unpreserved for our review, because he did not challenge
his plea to the charge of manslaughter by appropriate
postallocution motion (see People v Barnes, 119 AD3d 1290, 1290-
1291 [2014]; People v McGregor, 119 AD3d 1235, 1236 [2014]).
Contrary to his further contentions, the narrow exception to the
preservation requirement is inapplicable here, because
defendant's statements during the plea colloquy did not call into
question either his guilt or the voluntariness of the plea (see
People v Lopez, 71 NY2d 662, 666 [1988]; People v Barnes, 119
AD3d at 1291). Although at one point defendant made statements
indicating that he might not understand the nature of the charge
against him, Supreme Court made adequate further inquiry to
establish that defendant was knowingly admitting to the elements
of manslaughter in the first degree – i.e., that "with intent to
cause serious physical injury to another person, he cause[d] the
death of . . . a third person" (Penal Law § 125.20 [1]; see
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People v Ramos, 19 NY3d 133, 136-137 [2012]) – because he was, in
fact, guilty (see People v Lopez, 71 NY2d at 667-668). Moreover,
we are unpersuaded that his plea to the manslaughter charge was
rendered involuntary when the People consented to his request to
withdraw his plea to the charge of robbery in the second degree
and indicated their willingness to accept his plea to
manslaughter in satisfaction of both indictments. The second
indictment charging robbery was not dismissed until the time of
sentencing, and there is no merit to defendant's contention that
he was somehow misled regarding the maximum sentence that he
could have faced upon going to trial, as opposed to pleading
guilty to manslaughter in the first degree.

      Finally, defendant's valid waiver of the right to     appeal
precludes his assertion that his sentence was harsh and     excessive
(see People v Vandemark, 117 AD3d 1339, 1340 [2014], lv     denied
___ NY3d ___ [Sept. 30, 2014]; see also People v Lyman,     119 AD3d
968, 970 [2014]).

     Peters, P.J., Stein, Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
