State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 29, 2016 107196

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JAMES HAKKENBERG,

Appellant.

________________________________

Calendar Date: September 9, 2016

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

__________

Sandra M. Colatosti, Albany, for appellant.

P. David Soares, District Attorney, Albany (Brittany L.

Grome of counsel), for respondent.

__________

Devine, J.

Appeal from a judgment of the County Court of Albany County

(Herrick, J.), entered June 24, 2014, convicting defendant upon

his plea of guilty of the crime of burglary in the second degree.

In satisfaction of a six-count indictment, defendant

pleaded guilty to burglary in the second degree and waived his

right to appeal. County Court imposed the agreed-upon prison

sentence of 12 years with five years of postrelease supervision

and ordered defendant to pay restitution. Defendant appeals. 

We affirm. Initially, defendant argues that his guilty

plea was involuntary because he was not informed about his

predicate sentencing status. This claim was not adequately

preserved for our review by a timely postallocution motion to
-2- 107196 

withdraw his plea (see People v Lewis, 138 AD3d 1346, 1347

[2016]).1 Defendant, in any event, was made aware during the

plea colloquy that his prior felony convictions may or may not

result in second felony offender sentencing and that his status

in that regard, which would not affect the agreed-upon sentence,

would be determined at sentencing. County Court determined at

sentencing that defendant's prior convictions did not qualify him

for predicate sentencing and imposed the promised sentence. 

Under these circumstances, were we to address this claim, we

would find that his guilty plea was voluntary, knowing and

intelligent (see People v Haffiz, 19 NY3d 883, 884 [2012]; 

People v Medina, 129 AD3d 1385, 1386 [2015], lv denied 26 NY3d

1090 [2015]).

Defendant also contends that County Court erred in denying

his motions to suppress his statements to police and DNA

evidence. However, these challenges to adverse suppression

rulings are precluded by defendant's knowing, voluntary and

intelligent waiver of appeal (see People v Sanders, 25 NY3d 337,

342 [2015]; People v Zippo, 136 AD3d 1222, 1222 [2016], lv denied

27 NY3d 1141 [2016]). A review of the record establishes that

the court explained the nature and consequences of the appeal

waiver, ascertained that defendant understood it and had

discussed it with counsel, then observed defendant sign a

detailed written waiver in open court. Defendant's unqualified

appeal waiver was therefore valid and forecloses these claims

(see People v Sanders, 25 NY3d at 341-342). His challenge to the

agreed-upon sentence as harsh and excessive is likewise precluded

by the appeal waiver (see People v Lopez, 6 NY3d 248, 256

[2006]). Finally, while his challenge to the amount of the

restitution awarded survives his appeal waiver because the amount

was not specified in the plea agreement, it is unpreserved for

our review as he did not request a hearing or challenge the

amount of restitution at sentencing (see People v Horne, 97 NY2d

1 Defendant's pro se oral motion to withdraw his plea was

not made "before the imposition of sentence" and was untimely

(CPL 220.60 [3]). His further claim of ineffective assistance of

counsel is, accordingly, also unpreserved for our review (see

People v Houck, 74 AD3d 1476, 1477 [2010]). 
-3- 107196 

404, 414 n 3 [2002]; People v Melendez, 138 AD3d 1159, 1161

[2016], lv denied 27 NY3d 1136 [2016]). Defendant's remaining

claims also lack merit.

McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court