                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 9, 2017                    106709
________________________________

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

MICHAEL PETERSON,
                    Appellant.
________________________________


Calendar Date:   January 12, 2017

Before:   Peters, P.J., Egan Jr., Rose, Devine and Aarons, JJ.

                              __________


     Erin C. Morigerato, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeals (1) from a judgment of the County Court of Albany
County (Herrick, J.), rendered September 6, 2013, convicting
defendant upon his plea of guilty of the crime of criminal
contempt in the first degree, and (2) from a judgment of said
court, rendered November 15, 2013, which revoked defendant's
probation and imposed a sentence of imprisonment.

      Defendant pleaded guilty to criminal contempt in the first
degree and waived his right to appeal. County Court sentenced
him on September 6, 2013 to time served and a five-year term of
probation. On September 27, 2013, defendant was arrested and
charged with falsely reporting an incident in the third degree
and assault in the third degree. Based upon his arrest,
defendant also was charged with violating his probation.
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Pursuant to a negotiated plea agreement, which included a waiver
of the right to appeal, defendant admitted to violating his
probation. On November 15, 2013, County Court revoked
defendant's probation and resentenced him to the agreed-upon
prison term of 1 to 3 years. Defendant now appeals.1

      We affirm. Contrary to defendant's contention, the plea
colloquies and the counseled written waivers demonstrate that he
knowingly, intelligently and voluntarily waived the right to
appeal his conviction and resentence (see People v Long, 117 AD3d
1326, 1326 [2014], lv denied 24 NY3d 1003 [2014]; People v
Frasier, 105 AD3d 1079, 1080 [2013], lv denied 22 NY3d 1088
[2014]). The valid appeal waivers preclude defendant's challenge
to his resentence as harsh and excessive (see People v Moulton,
134 AD3d 1251, 1252 [2015]; People v Handly, 122 AD3d 1007, 1008
[2014]).

      Defendant's challenges to the voluntariness of both his
plea to the criminal contempt charge and his admission to
violating his probation are not preserved for our review,
inasmuch as the record fails to disclose that he made an
appropriate postallocution motion and, further, defendant made no
statements during the colloquies so as to trigger the narrow
exception to the preservation rule (see People v Woodard, 139
AD3d 1238, 1238-1239 [2016], lv denied 28 NY3d 939 [2016]; People
v Skidds, 123 AD3d 1342, 1342-1343 [2014], lv denied 25 NY3d 992
[2015]). Similarly, the lack of an appropriate postallocution
motion renders defendant's claim that he was denied the effective
assistance of counsel unpreserved for our review (see People v
Beach, 115 AD3d 1117, 1118 [2014]; People v Alexander, 110 AD3d
1111, 1112 [2013], lv denied 22 NY3d 1154 [2014]).

        Peters, P.J., Rose, Devine and Aarons, JJ., concur.


    1
        Defendant's pro se notice of appeal, filed in August
2014, is from a "judgment" rendered July 10, 2013. While there
is no such judgment in the record before us, it appears that
defendant intended to appeal from both the September 6, 2013 and
November 15, 2013 judgments. As such, we will exercise our
discretion and overlook this error (see CPL 460.10 [6]).
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ORDERED that the judgments are affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
