State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 19, 2017 106630 

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THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ROCKNE COX,

Appellant.

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Calendar Date: December 13, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

__________

Elena Jaffe Tastensen, Saratoga Springs, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M.

Hollis of counsel), for respondent.

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Aarons, J.

Appeal from a judgment of the County Court of Franklin

County (Main Jr., J.), rendered January 27, 2014, convicting

defendant upon his plea of guilty of the crimes of criminal sale

of a firearm in the third degree and aggravated unlicensed

operation of a motor vehicle in the first degree.

In satisfaction of two separate indictments, defendant

pleaded guilty to aggravated unlicensed operation of a motor

vehicle in the first degree and criminal sale of a firearm in the

third degree. He orally waived his right to appeal when entering

his guilty plea. He was thereafter sentenced, in accordance with

the terms of the plea agreement, to concurrent prison terms of 1

to 3 years on the unlicensed operation conviction and four years

on the criminal sale conviction, the latter of which included a
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three-year period of postrelease supervision. Defendant now

appeals.

We affirm. Although not precluded by his waiver of the

right to appeal, defendant's challenge to the voluntariness of

his plea is unpreserved as the record does not reflect that he

made an appropriate postallocution motion (see People v Lloyd,

142 AD3d 1250, 1251 [2016], lv denied 28 NY3d 1073 [2016]; People

v Macon, 142 AD3d 739 [2016], lvs denied 28 NY3d 1073, 1075

[2016]). Moreover, the narrow exception to the preservation rule

is inapplicable as there is no indication that defendant made any

statements during the plea proceedings that cast doubt upon his

guilt or called into question the voluntariness of his plea (see

People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Maldonado,

140 AD3d 1530 [2016], lv denied 28 NY3d 1029 [2016]). Likewise,

defendant's claim of ineffective assistance of counsel is, to the

extent that it impacts the voluntariness of his plea, unpreserved

given the absence of a postallocution motion (see People v Lloyd,

142 AD3d at 1250; People v Macon, 142 AD3d at 739).

Defendant's claim that the sentence is harsh and excessive

is not precluded by his waiver of the right to appeal inasmuch as

we find that the waiver is invalid due to County Court's failure

to explain that this right was separate and distinct from the

other rights that defendant was forfeiting by pleading guilty

(see People v Lopez, 6 NY3d 248, 256 [2006]; People v Lloyd, 142

AD3d at 1250). We, nevertheless, find this claim to be

unavailing. Defendant has a lengthy criminal record dating back

to 2001 and, during such time, has exhibited a pattern of

dangerous and irresponsible behavior. In addition, the sentence

imposed fell within the sentencing parameters to which defendant

consented as part of the plea agreement and was actually a year

less than the court could have imposed. Accordingly, we find no

abuse of discretion or any extraordinary circumstances warranting

a reduction of the sentence in the interest of justice (see

People v Bickford, 140 AD3d 1523, 1525 [2016]).

McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court