                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 2, 2014                   105233
________________________________

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

MARCEL N. SMITH,
                    Appellant.
________________________________


Calendar Date:   September 12, 2014

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

                             __________


     Aaron A. Louridas, Delmar, for appellant.

      P. David Soares, District Attorney, Albany (Steven M. Sharp
of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered May 3, 2012, convicting defendant upon
his plea of guilty of the crime of criminal possession of a
weapon in the second degree.

      Defendant pleaded guilty to criminal possession of a weapon
in the second degree in satisfaction of a pending indictment, and
further waived his right to appeal from the conviction and
sentence. County Court imposed a sentence within the range
contemplated by the plea agreement, namely, a prison term of
seven years to be followed by postrelease supervision of five
years. Defendant now appeals, and we affirm.
                              -2-                105233

      County Court was not obliged to "engage in any particular
litany or catechism in satisfying itself that a defendant has
entered a knowing, intelligent and voluntary appeal waiver," and
it properly explained the waiver to defendant and ensured that he
understood the waiver (People v Bradshaw, 18 NY3d 257, 265 [2011]
[internal quotation marks and citation omitted]; see People v
Colon, 101 AD3d 1161, 1161 [2012], lv denied 21 NY3d 1003
[2013]). Defendant's further challenge to the voluntariness of
his guilty plea survives that waiver, but is nevertheless
unpreserved for our review due to his apparent failure to raise
the issue in an appropriate postallocution motion (see People v
Trombley, 115 AD3d 1114, 1114 [2014], lv denied ___ NY3d ___
[Aug. 8, 2014]; People v Dozier, 115 AD3d 1001, 1001 [2014]).
Defendant made no statements during the plea colloquy that would
bring this case within the narrow exception to the preservation
rule, and we perceive no reason "to take corrective action as a
matter of discretion in the interest of justice" (People v Young,
102 AD3d 1061, 1061 [2013]; see People v Borden, 91 AD3d 1124,
1126 [2012], lv denied 19 NY3d 862 [2012]). Defendant's
ineffective assistance of counsel argument, to the extent that it
survives his appeal waiver, is similarly unpreserved for our
review (see People v Livziey, 117 AD3d 1341, 1342 [2014]; People
v Osgood, 111 AD3d 1029, 1030 [2013], lv denied 22 NY3d 1089
[2014]).

      Defendant next asserts that County Court improperly
abdicated its sentencing discretion, an issue reaching "the
'essential nature' of the right to be sentenced as provided by
law" that is properly before us (People v Fuller, 57 NY2d 152,
156 [1982], quoting People v Craig, 295 NY 116, 120 [1946]; see
People v Nolcox, 40 AD3d 1128, 1128 [2007], lv denied 9 NY3d 1037
[2008]; People v Halston, 37 AD3d 1144, 1145 [2007], lvs denied 8
NY3d 985 [2007]). His claim is without merit, however, as County
Court expressly conditioned the "promise" to impose a sentence
within the bargained-for range "upon its being lawful and
appropriate in light of the subsequent presentence report or
information obtained from other reliable sources" (People v
Selikoff, 35 NY2d 227, 238 [1974], cert denied sub nom. Selikoff
v New York, 419 US 1122 [1975]; see People v Hicks, 98 NY2d 185,
188 [2002]).
                              -3-                  105233

      Defendant's valid appeal waiver forecloses review of his
contention that the sentence is harsh and excessive (see People v
Dozier, 115 AD3d at 1002).

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



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
