State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 107704 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MELISSA McKNIGHT,

Appellant.

________________________________

Calendar Date: October 20, 2016

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

__________

Robert N. Gregor, Lake George, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A.

Brunecz of counsel), for respondent.

__________

Mulvey, J.

Appeal from a judgment of the County Court of Schenectady

County (Drago, J.), rendered January 22, 2014, convicting

defendant upon her plea of guilty of the crime of robbery in the

first degree.

In satisfaction of a five-count indictment, defendant

pleaded guilty to robbery in the first degree, admitting that she

forcibly stole property from a store clerk at knife point. The

plea agreement included an oral waiver of appeal and defendant

executed a written waiver of appeal in court during the plea

allocution. Consistent with the agreement, defendant was

sentenced to five years in prison with 21⁄2 years of postrelease

supervision, and she now appeals.
-2- 107704 

We affirm. Defendant's contention that her guilty plea was

involuntary, which survives her appeal waiver,1 is unpreserved

for our review inasmuch as the record does not reflect that she

made an appropriate postallocution motion, despite an opportunity

to do so (see CPL 220.60 [3]; People v O'Keefe, 133 AD3d 1034,

1035 [2015], lv denied 26 NY3d 1148 [2016]; see also People v

Williams, 27 NY3d 212, 214, 219-222 [2016]). Moreover, defendant

did not make any statements during the plea allocution that

negated any element of the crime, otherwise cast doubt upon her

guilt or called into question the voluntariness of her plea so as

to trigger the narrow exception to the preservation rule (see

People v Williams, 27 NY3d at 220; People v Lopez, 71 NY2d 662,

666 [1988]; People v Forest, 141 AD3d 967, 969 [2016]). Rather,

the record reflects that, during the plea allocution, defendant

indicated that she understood the plea terms and had discussed

them with counsel, she then pleaded guilty without hesitation

conceding that she was in fact guilty and, under oath, admitted

committing the robbery. She gave no indication that she was

impaired at the time of the robbery so as to require an inquiry

regarding an intoxication defense (see People v Beblowski, 127

AD3d 1505, 1505 [2015], lv denied 26 NY3d 926 [2015]; compare

People v Osgood, 254 AD2d 571, 572 [1998]). Contrary to

defendant's argument, her statement at sentencing regarding her

history of drug use did not suggest that she had been using drugs

at the time of the robbery so as to require a further inquiry

(see People v Beaty, 22 NY3d 918, 921 [2013]; compare People v

DeCenzo, 132 AD3d 1160, 1161 [2015], lv denied 27 NY3d 996

[2016]; People v Maxson, 101 AD3d 1384, 1386 [2012]; People v

Thomson, 279 AD2d 644, 644-645 [2001]). Thus, County Court "had

no duty to conduct an inquiry concerning the potential defense of

intoxication based upon comments made by defendant during . . .

the sentencing proceeding" (People v Phillips, 30 AD3d 911, 911

[2006], lv denied 7 NY3d 869 [2006]).

1 While defendant challenges the waiver of appeal, all

issues argued in her brief survive that waiver and, in any event,

we are satisfied that the combined oral and written appeal waiver

was knowing, voluntary and intelligent (see People v Lopez, 6

NY3d 248, 256 [2006]; People v Belile, 137 AD3d 1460, 1461

[2016]). 
-3- 107704 

McCarthy, J.P., Lynch, Devine and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court