                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   107245
________________________________

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

SUZETTE GUZMAN-MOORE,
                    Appellant.
________________________________


Calendar Date:   September 20, 2016

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

                             __________


     Donnial K. Hinds, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered August 28, 2014, convicting defendant
upon her plea of guilty of the crimes of scheme to defraud in the
first degree and identity theft in the second degree (three
counts).

      Defendant waived indictment and pleaded guilty to scheme to
defraud in the first degree and three counts of identity theft in
the second degree. Defendant also orally waived her right to
appeal and executed a written appeal waiver in open court.
County Court sentenced defendant in accordance with the terms of
the plea agreement to consecutive prison terms of 1 to 3 years on
                                -2-                  107245

each charge.   Defendant appeals.1

      Defendant contends that the sentence imposed is harsh and
excessive. Such challenge is precluded by defendant's
unchallenged waiver of the right to appeal (see People v Mann,
140 AD3d 1532, 1533 [2016]; People v Perkins, 140 AD3d 1401, 1403
[2016]). To the extent that defendant contends that it was
illegal for County Court to impose consecutive sentences,
challenges to the legality of a sentence are not precluded by an
appeal waiver (see People v Blair, 140 AD3d 1478, 1479 [2016],
lv denied 28 NY3d 927 [2016]). However, we find this argument to
be without merit, as "the allegations set forth in the superior
court information[], combined with the facts adduced during the
plea allocution, sufficiently establish that these crimes are
distinct and [that] the charges arose from separate acts" (People
v Woods, 141 AD3d 954, 956 [2016] [internal quotation marks and
citation omitted]).

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


     ORDERED that the judgment is affirmed.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court

     1
         Defendant's challenge to the validity of the appeal
waiver was raised for the first time in her reply brief and,
therefore, is not properly before this Court (see People v Neal,
133 AD3d 920, 921 n 2 [2015]; People v Davenport 58 AD3d 892, 894
[2009], lv denied 12 NY3d 782 [2009]). Were we to consider this
issue, we would find that defendant knowingly, voluntarily and
intelligently waived the right to appeal (see People v
Constantopoules, 141 AD3d 942, 942-943 [2016]).
