                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     107500
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THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

NEAL D. SOMMERS,
                    Appellant.
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Calendar Date:   May 26, 2016

Before:   Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                             __________


     Thomas F. Garner, Middleburgh, for appellant.

      James E. Conboy, District Attorney, Fonda (Pamela A. Ladd
of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Montgomery
County (Catena, J.), rendered January 5, 2015, convicting
defendant upon his plea of guilty of the crime of rape in the
first degree.

      In satisfaction of a two-count indictment, defendant
pleaded guilty to rape in the first degree, and his plea included
the waiver of the right to appeal. County Court thereafter
imposed the agreed-upon sentence of 12 years in prison to be
followed by 10 years of postrelease supervision. Defendant
appeals.

      We affirm. Contrary to defendant's contention, he validly
waived the right to appeal his conviction and sentence. County
                              -2-                  107500

Court distinguished the right to appeal from the rights
automatically forfeited by a guilty plea, and defendant
acknowledged that he understood and was voluntarily waiving his
right (see People v Lopez, 6 NY3d 248, 256 [2006]; People v
Rubio, 133 AD3d 1041, 1042 [2015]). Defendant also signed a
written waiver that explained the appeal waiver and indicated
that counsel had discussed its ramifications with him (see People
v Clark, 135 AD3d 1239, 1239-1240 [2016], lv denied 27 NY3d 995
[2016]; People v Fate, 117 AD3d 1327, 1328 [2014], lv denied 24
NY3d 1083 [2014]). Defendant's valid appeal waiver precludes our
review of his claim that his sentence is harsh and excessive (see
People v Smith, 136 AD3d 1107, 1109 [2016], lv denied ___ NY3d
___ [May 13, 2016]; People v Butler, 134 AD3d 1349, 1350 [2015],
lvs denied 27 NY3d 962, 963 [2016]).

      Defendant also argues that his plea was not knowing,
intelligent and voluntary because County Court failed to advise
him of the trial-related rights forfeited by pleading guilty (see
Boykin v Alabama, 395 US 238, 243 [1969]). Inasmuch as defendant
failed to make a postallocution motion to withdraw his plea,
despite having several weeks to do so prior to his sentencing,
this issue is not preserved for our review (see People v
Conceicao, 26 NY3d 375, 382 [2015]; People v Walker, 135 AD3d
1244, 1245 [2016]). Moreover, the record actually shows that
defendant was fully advised of his trial-related rights during
the allocution.

     Lahtinen, J.P., Rose, Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
