                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   106630
________________________________

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

ROCKNE COX,
                    Appellant.
________________________________


Calendar Date:   December 13, 2016

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

                             __________


     Elena Jaffe Tastensen, Saratoga Springs, for appellant.

      Craig P. Carriero, District Attorney, Malone (Jennifer M.
Hollis of counsel), for respondent.

                             __________


Aarons, J.

      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered January 27, 2014, convicting
defendant upon his plea of guilty of the crimes of criminal sale
of a firearm in the third degree and aggravated unlicensed
operation of a motor vehicle in the first degree.

      In satisfaction of two separate indictments, defendant
pleaded guilty to aggravated unlicensed operation of a motor
vehicle in the first degree and criminal sale of a firearm in the
third degree. He orally waived his right to appeal when entering
his guilty plea. He was thereafter sentenced, in accordance with
the terms of the plea agreement, to concurrent prison terms of 1
to 3 years on the unlicensed operation conviction and four years
on the criminal sale conviction, the latter of which included a
                              -2-                 106630

three-year period of postrelease supervision.   Defendant now
appeals.

      We affirm. Although not precluded by his waiver of the
right to appeal, defendant's challenge to the voluntariness of
his plea is unpreserved as the record does not reflect that he
made an appropriate postallocution motion (see People v Lloyd,
142 AD3d 1250, 1251 [2016], lv denied 28 NY3d 1073 [2016]; People
v Macon, 142 AD3d 739 [2016], lvs denied 28 NY3d 1073, 1075
[2016]). Moreover, the narrow exception to the preservation rule
is inapplicable as there is no indication that defendant made any
statements during the plea proceedings that cast doubt upon his
guilt or called into question the voluntariness of his plea (see
People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Maldonado,
140 AD3d 1530 [2016], lv denied 28 NY3d 1029 [2016]). Likewise,
defendant's claim of ineffective assistance of counsel is, to the
extent that it impacts the voluntariness of his plea, unpreserved
given the absence of a postallocution motion (see People v Lloyd,
142 AD3d at 1250; People v Macon, 142 AD3d at 739).

      Defendant's claim that the sentence is harsh and excessive
is not precluded by his waiver of the right to appeal inasmuch as
we find that the waiver is invalid due to County Court's failure
to explain that this right was separate and distinct from the
other rights that defendant was forfeiting by pleading guilty
(see People v Lopez, 6 NY3d 248, 256 [2006]; People v Lloyd, 142
AD3d at 1250). We, nevertheless, find this claim to be
unavailing. Defendant has a lengthy criminal record dating back
to 2001 and, during such time, has exhibited a pattern of
dangerous and irresponsible behavior. In addition, the sentence
imposed fell within the sentencing parameters to which defendant
consented as part of the plea agreement and was actually a year
less than the court could have imposed. Accordingly, we find no
abuse of discretion or any extraordinary circumstances warranting
a reduction of the sentence in the interest of justice (see
People v Bickford, 140 AD3d 1523, 1525 [2016]).

     McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.
                        -3-                  106630

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
