                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered:     November 20, 2014               103921
                                                         105455
________________________________

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

RAYMOND VAN CLIEF,
                    Appellant.
________________________________


Calendar Date:   October 15, 2014

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

                               __________


     Timothy S. Brennan, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Gerald A.
Dwyer of counsel), for respondent.

                               __________


Stein, J.

      Appeals (1) from a judgment of the County Court of
Schenectady County (Giardino, J.), rendered November 29, 2010,
convicting defendant upon his plea of guilty of the crime of
manslaughter in the first degree, and (2) by permission, from an
order of said court (Drago, J.), entered December 12, 2012, which
denied defendant's motion pursuant to CPL 440.10 to vacate the
judgment of conviction, without a hearing.

      Defendant was charged in an indictment with various crimes,
including murder in the second degree, after he shot and killed
his ex-wife's paramour. Following the denial of his motion to
suppress statements made to police and the granting of the
People's motion to preclude psychiatric evidence, defendant
                              -2-                103921
                                                 105455

pleaded guilty to manslaughter in the first degree and waived his
right to appeal. Defendant was thereafter sentenced, in
accordance with the plea agreement, to 23 years in prison to be
followed by five years of postrelease supervision. Defendant's
subsequent motion pursuant to CPL 440.10 to vacate the judgment
of conviction was denied, and defendant now appeals from both the
judgment of conviction and, by permission, the order denying his
motion to vacate the judgment.

      Initially, we reject defendant's contention that his waiver
of the right to appeal is invalid. County Court (Giardino, J.)
adequately explained the nature of the right to appeal and
elicited an explanation of the right from defendant in his own
words to ensure his understanding. In addition, defendant signed
a detailed written waiver in open court that further explained
the nature of the right and clarified that it was separate and
distinct from the rights automatically forfeited upon a plea of
guilty. In our view, defendant knowingly, intelligently and
voluntarily waived his right to appeal his conviction and
sentence (see People v Bradshaw, 18 NY3d 257, 264-267 [2011];
People v Ramos, 7 NY3d 737, 738 [2006]), thereby precluding his
claim that his sentence is harsh and excessive (see People v
Fisher, 119 AD3d 1289, 1289 [2014]).

      While defendant's challenge to the voluntariness of the
plea survives his valid appeal waiver (see People v Seaberg, 74
NY2d 1, 10 [1989]), his contentions that he was not adequately
informed of the terms of the plea and did not have sufficient
time to consider them are unpreserved inasmuch as he failed to
move to withdraw his plea (see People v Morales, 119 AD3d 1082,
1084 n [2014]), and the narrow exception to the preservation rule
is inapplicable inasmuch as defendant made no statements during
the allocution that would cast doubt on the voluntariness of the
plea (see People v Jackson, 119 AD3d 1288, 1288 [2014]; People v
Watson, 115 AD3d 1016, 1017 [2014], lv denied 24 NY3d 965
[2014]). In any event, his challenge to the voluntariness of
his plea, including his related claim of ineffective assistance
of counsel, is belied by the record.
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                                                   105455

      Turning to the denial of the CPL 440.10 motion to vacate
the judgment of conviction, defendant asserted, among other
things, that his counsel was ineffective by failing to timely
disclose his history of posttraumatic stress disorder. However,
we note that he failed to present any medical evidence in
connection with his CPL 440.10 motion to support his claim that
he has been diagnosed with the disorder, and there is no such
evidence in the record before us. These circumstances do not
warrant reversal of either the judgment of conviction or the
denial of his CPL 440.10 motion (see People v Vallee, 97 AD3d
972, 973-974 [2012], lv denied 20 NY3d 1104 [2013]; see also
People v Morin, 117 AD3d 1315, 1316-1317 [2014]). Defendant's
remaining arguments have been considered and found to be lacking
in merit.

     Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment and order are affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
