                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 11, 2014                   105016
________________________________

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

FRANCIS D. SPELLICY,
                    Appellant.
________________________________


Calendar Date:   October 10, 2014

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

                             __________


      Joseph Nalli, Fort Plain, for appellant, and appellant
pro se.

      Louise K. Sira, District Attorney, Johnstown (James P.
Riley of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Fulton County
(Giardano, J.), rendered July 27, 2011, convicting defendant upon
his plea of guilty of the crime of attempted burglary in the
second degree.

      In December 2010, in satisfaction of a five-count
indictment, defendant pleaded guilty to burglary in the second
degree and waived his right to appeal. He later successfully
moved to vacate the plea and new counsel was appointed. In July
2011, in satisfaction of all charges against him, defendant
pleaded guilty to attempted burglary in the second degree and
waived his right to appeal. The charges stemmed from a May 2010
incident where he, among other things, entered a residence
                              -2-                105016

without the permission of the owner with the intent to commit a
crime. He was sentenced, as agreed, to a two-year prison term
with 1½ years of postrelease supervision. Defendant now appeals.

      We affirm. Initially, we are unpersuaded by defendant's
challenge to the validity of his appeal waiver. "A waiver of the
right to appeal is effective only so long as the record
demonstrates that it was made knowingly, intelligently and
voluntarily" (People v Lopez, 6 NY3d 248, 256 [2006] [citation
omitted]). "An appellate waiver meets this standard when a
defendant has 'a full appreciation of the consequences' of such
waiver" (People v Bradshaw, 18 NY3d 257, 264 [2011], quoting
People v Seaberg, 74 NY2d 1, 11 [1989]). "To that end, a
defendant must comprehend that an appeal waiver 'is separate and
distinct from those rights automatically forfeited upon a plea of
guilty'" (People v Bradshaw, 18 NY3d at 264, quoting People v
Lopez, 6 NY3d at 256). Here, the record confirms that County
Court advised defendant with regard to the nature of the rights
he was waiving as part of the appeal waiver and that the appeal
waiver was separate from those rights he forfeited by his guilty
plea. In fact, the court asked him to explain the appeal waiver,
and defendant confirmed that it meant that he would not "be able
to come back and make any issues about defenses or problems or
[that he did not] understand or anything like that." Defendant
asked to, and did, execute a written appeal waiver in open court
that included this information and reinforced that he was aware
of the consequences of the waiver before confirming that he had
an opportunity to review the appeal waiver with his attorney. In
our view, his argument that he felt forced to waive his right to
appeal is, therefore, belied by the record (see People v Miner,
120 AD3d 1449, 1450 [2014]; People v Long, 117 AD3d 1326, 1326
[2014], lv denied ___ NY3d ___ [Oct. 10, 2014]).

      Defendant also argues that his guilty plea should be
vacated because it was not knowing or voluntary. While the
voluntariness of a plea may be challenged where there is an
appeal waiver (see People v Barnes, 119 AD3d 1290, 1290-1291
[2014]), here, the claim is not preserved for appellate review
because defendant did not make an appropriate postallocution
motion (see id. at 1291; People v Smith, 119 AD3d 1088, 1089
[2014]). Contrary to defendant's argument, we do not believe the
                              -3-                  105016

record casts doubt on the voluntariness of his plea so as to
warrant application of the "rare" exception to the preservation
requirement (People v Lopez, 71 NY2d 662, 666 [1988]; see People
v Ferro, 101 AD3d 1243, 1244 [2012], lv denied 20 NY3d 1098
[2013]). Rather, the record confirms that defendant directed his
attorney to seek the plea, County Court explained and confirmed
that defendant understood the terms and consequences of the plea,
and defendant admitted that he engaged in the charged conduct
(see People v Barnes, 119 AD3d at 1291; People v Wasley, 119 AD3d
1216, 1217 [2014]). Although the court had rejected defendant's
attempt to plea in June 2011, we do not believe that his prior
refusal to admit guilt invalidates the instant plea to a reduced
charge (see People v Wasley, 119 AD3d at 1217). In our view, the
record confirms that defendant was especially conscious of the
consequences of his plea as compared to going to trial, and we
note that he successfully obtained the violent felony override
(see 7 NYCRR 1900.4 [c]), a request that County Court had
previously denied.

      Finally, defendant's challenge to County Court's denial of
his suppression motion ruling is precluded by the valid appeal
waiver (see People v Kemp, 94 NY2d 831, 833 [1999]; People v
Colon, 101 AD3d 1161, 1161 [2012], lv denied 21 NY3d 1003 [2013];
People v Junior, 97 AD3d 984, 984-985 [2012], lv denied 19 NY3d
1103 [2012]), and we decline defendant's request to take
corrective action in the interest of justice.

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


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
