                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     107098
________________________________

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

SAM MANN,
                    Appellant.
________________________________


Calendar Date:   May 24, 2016

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

                             __________


     Erin C. Morigerato, Albany, for appellant.

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

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered August 14, 2014, convicting defendant
upon his plea of guilty of the crime of strangulation in the
second degree.

      Defendant pleaded guilty to strangulation in the second
degree and waived his right to appeal. County Court sentenced
defendant as a predicate felon, in accordance with the plea
agreement, to a prison term of seven years followed by five years
of postrelease supervision. Defendant appeals.

      Initially, we are unpersuaded by defendant's contention
that the combined oral and written waiver of the right to appeal
was not knowing, voluntary and intelligent (see People v Lopez, 6
                              -2-                  107098

NY3d 248, 256 [2006]; People v Belile, 137 AD3d 1460, 1461
[2016]). The record reflects that County Court explained, and
defendant acknowledged that he understood, that the waiver of the
right to appeal is separate and distinct from the rights
automatically forfeited by the guilty plea. In addition,
defendant confirmed that he had read, understood and signed the
written waiver of appeal, which he had executed in open court.
Given defendant's valid waiver of the right to appeal, his
challenge to the agreed-upon sentence as harsh and excessive is
precluded (see People v Bethea, 133 AD3d 1033, 1033 [2015]).

      Although defendant's challenge to the voluntariness of his
guilty plea survives the appeal waiver, it is unpreserved for our
review as the record does not indicate that defendant made any
postallocution motion to withdraw his guilty plea (see CPL 220.60
[3]; People v Buck, 136 AD3d 1117, 1118 [2016]; People v Blair,
136 AD3d 1105, 1106 [2016], lvs denied ___ NY3d ___ [May 10,
2016]). Furthermore, the narrow exception to the preservation
rule is inapplicable as defendant made no statements during the
plea allocution that were inconsistent with his guilt or
otherwise called into question the voluntariness of his plea (see
People v Sawyer, 135 AD3d 1164, 1165 [2016], lv denied 27 NY3d
1006 [2016]; People v Bethea, 133 AD3d at 1034).

     Lahtinen, J.P., Garry, Clark and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
