                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 19, 2016                       106341
________________________________

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

NICOLE L. CASE,
                    Appellant.
________________________________


Calendar Date:    April 20, 2016

Before:   Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

                              __________


     Eric C. Morigerato, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                              __________


Mulvey, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered August 20, 2013 in Albany County, convicting defendant
upon her plea of guilty of the crime of burglary in the second
degree.

      Defendant pleaded guilty to burglary in the second degree
pursuant to a plea agreement that satisfied a five-count
indictment and capped her prison sentence at nine years to be
followed by four years of postrelease supervision. The charges
stemmed from defendant's involvement with others in a violent
home invasion in which items of personal property were stolen.
Consistent with the agreement, Supreme Court imposed a prison
term of eight years with four years of postrelease supervision.
Defendant now appeals.
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      We affirm. Initially, defendant argues that she did not
knowingly waive her right to appeal. The record discloses that
an appeal waiver was recited as a term of the agreement, and
Supreme Court explained during the plea allocution that it was
separate and distinct from the trial rights forfeited by the
guilty plea, and ascertained that defendant understood and
willingly waived her appellate rights. Defendant, who conferred
with counsel during the oral appeal waiver, also signed a written
appeal waiver in court after indicating that she had discussed it
"fully" with counsel and understood it. Accordingly, we find
that the appeal waiver was knowing, voluntary and intelligent
(see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v
Jackson, 129 AD3d 1342, 1342 [2015]; People v Toback, 125 AD3d
1060, 1061 [2015], lv denied 25 NY3d 993 [2015]), precluding her
challenges to the sentence as harsh and excessive and to the
adequacy of the plea allocution (see People v Lopez, 6 NY3d at
255-256 [2006]; People v Atkinson, 124 AD3d 1149, 1150 [2015], lv
denied 25 NY3d 949 [2015]; People v Rapp, 133 AD3d 979, 979
[2015]).

      While defendant's challenge to her guilty plea as
involuntary survives her appeal waiver, it was not preserved by
an appropriate postallocution motion to withdraw her guilty plea
(see CPL 220.60 [3]; People v O'Keefe, 133 AD3d 1034, 1035
[2015], lv denied 26 NY3d 1148 [2016]), and she made no
statements during the allocution that negated an essential
element of the crime or cast doubt on her guilt so as to trigger
the narrow exception to the preservation rule (see People v
Lopez, 71 NY2d 662, 665 [1988]; People v Burritt, 127 AD3d 1433,
1434 [2015]). Contrary to her claims on appeal that she had
wanted to withdraw her guilty plea, the record reflects that
after she made statements at sentencing minimizing her
involvement and suggesting that she wanted to cooperate against
her accomplices, she was afforded an adjournment to permit her to
move to withdraw her plea and thereafter expressly declined to so
move (see People v Martin, 125 AD3d 1054, 1054 [2015], lv denied
26 NY3d 932 [2015]). In any event, her unequivocal responses to
Supreme Court's detailed questions were sufficient to establish
her guilt and the record establishes that her plea was knowing,
voluntary and intelligent (see People v Tyrell, 22 NY3d 359, 365
[2013]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v
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Rouse, 119 AD3d 1161, 1163 [2014]).

      Also lacking in merit is defendant's claim that she was
deprived of meaningful representation (see People v Benevento, 91
NY2d 708, 713-714 [1998]). "In the context of a guilty plea, a
defendant has been afforded meaningful representation when he or
she receives an advantageous plea and nothing in the record casts
doubt upon the apparent effectiveness of counsel" (People v
Beekman, 134 AD3d 1355, 1356-1357 [2015] [internal quotation
marks and citation omitted]). Defendant expressed satisfaction
with the representation provided by defense counsel, who secured
a favorable plea deal that avoided a substantially longer
potential sentence, and she has failed to "demonstrate the
absence of strategic or other legitimate explanations for
counsel's alleged failure[s]" (People v Wragg, 26 NY3d 403, 409
[2015]). Finally, her assertions regarding what counsel advised
her or investigated are outside the record on appeal and are more
properly raised in a motion to vacate the judgment pursuant to
CPL article 440 (see People v Haffiz, 19 NY3d 883, 885 [2012];
People v Miner, 120 AD3d 1449, 1450 [2014]). Her remaining
claims lack merit.

     Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
