                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 30, 2014                    105977
________________________________

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

JOSEPH GUYETTE,
                    Appellant.
________________________________


Calendar Date:    September 5, 2014

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

                              __________


     Barrett D. Mack, Albany, for appellant.

      Karen A. Heggen, Acting District Attorney, Ballston Spa
(Ann C. Sullivan of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered March 25, 2013, convicting
defendant upon his plea of guilty of the crimes of promoting a
sexual performance by a child (10 counts) and possessing a sexual
performance by a child (10 counts).

      In full satisfaction of a 74-count indictment (as well as
any additional charges stemming from the images seized from
defendant's residence in April 2011), defendant pleaded guilty to
10 counts of promoting a sexual performance by a child and 10
counts of possessing a sexual performance by a child and waived
his right to appeal. County Court denied defendant's subsequent
request to redact certain information from the presentence
investigation report and sentenced defendant to the agreed-upon
                              -2-                105977

prison term of 1 to 3 years on each count – said sentences to run
concurrently. Defendant now appeals.

      To the extent that defendant contends that his waiver of
the right to appeal was invalid, we disagree. A review of the
plea colloquy reveals that County Court explained the separate
and distinct nature of such waiver and, further, confirmed that
defendant understood the written waiver that he executed
following consultation with counsel. Accordingly, we conclude
that defendant's waiver of the right to appeal his conviction and
sentence was knowing, intelligent and voluntary (see People v
Munger, 117 AD3d 1343, 1343 [2014], lv denied 23 NY3d 1040
[2014]; People v Fligger, 117 AD3d 1343, 1344 [2014], lv denied
23 NY3d 1061 [2014]; People v Graves, 113 AD3d 998, 999 [2014],
lv denied 23 NY3d 1037 [2014]). In light of defendant's valid
waiver, he is precluded from challenging County Court's
suppression and Molineux rulings (see People v Lopez, 118 AD3d
1190, 1190 [2014]; People v Mattison, 94 AD3d 1157, 1158 [2012]),
as well as County Court's denial of his application to redact
certain statements and information from the presentence
investigation report (see People v Abdul, 112 AD3d 644, 645
[2013], lv denied 22 NY3d 1136 [2014]; People v Moquette, 200
AD2d 854, 854 [1994], lv denied 83 NY2d 874 [1994]).

      Although defendant's challenge to the voluntariness of his
plea survives his valid waiver of appeal, this issue nonetheless
is unpreserved for our review absent evidence of an appropriate
postallocution motion (see People v Dozier, 115 AD3d 1001, 1001
[2014]; People v Sylvan, 107 AD3d 1044, 1045 [2013], lv denied 22
NY3d 1141 [2014]).1 Moreover, the narrow exception to the
preservation requirement was not implicated here, as defendant
did not make any statements during his plea allocution that were
inconsistent with his guilt or otherwise called into question the
voluntariness of his plea (see People v Hare, 110 AD3d 1117, 1117
[2013]; People v Revette, 102 AD3d 1065, 1066 [2013]). In any
event, defendant's present claim – that he is "borderline


    1
        The letter authored by defendant's father seeking to
withdraw defendant's plea fails to constitute an appropriate
postallocution motion.
                              -3-                  105977

mentally retarded" – finds no support in the record. Notably,
defendant expressly denied taking "any kind of drugs or
medication" or "suffering from any kind of illness that would
make it difficult for [him] to understand what [was] being said"
during the plea colloquy, and our review of the record fails to
disclose any indication that defendant suffered from an
intellectual impairment that impacted the voluntariness of his
plea (cf. People v Chavis, 117 AD3d 1193, 1194 [2014]; People v
Rought, 90 AD3d 1247, 1248 [2011], lv denied 18 NY3d 962 [2012]).

      Finally, although defendant now contends that counsel
failed to properly advance and document his asserted intellectual
impairments, this claim implicates matters outside the record
and, as such, is more properly considered in the context of a CPL
article 440 motion (cf. People v McCray, 96 AD3d 1160, 1161
[2012], lv denied 19 NY3d 1104 [2012]; People v Watson, 61 AD3d
1217, 1218 [2009], lv denied 12 NY3d 930 [2009]). The balance of
defendant's ineffective assistance of counsel claim – to the
extent that it impacts upon the voluntariness of his plea –
survives defendant's waiver of the right to appeal but is
similarly unpreserved in the absence of an appropriate
postallocution motion (see People v Lazore, 102 AD3d 1017, 1017-
1018 [2013]; People v Benson, 100 AD3d 1108, 1109 [2012]).
Defendant's remaining arguments, to the extent not specifically
addressed, have been examined and found to be lacking in merit.

     Stein, J.P., McCarthy, Lynch and Clark, JJ., concur.


     ORDERED that the judgment is affirmed.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
