| People v Jackson |
| 2014 NY Slip Op 05568 [119 AD3d 1288] |
| July 31, 2014 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| 1 The People of the State of New York, Respondent, v Elia Jackson, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Peters, P.J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 29, 2011, convicting defendant upon her plea of guilty of the crime of attempted assault in the first degree.
In satisfaction of a three-count indictment, defendant entered into a negotiated plea
agreement pursuant to which she entered a guilty plea to a reduced count of attempted
assault in the first degree. The charges arose from defendant's admitted conduct in
intentionally striking the victim with her car while driving, causing serious physical
injuries. As part of the agreement, defendant waived her right to appeal the conviction
and sentence and, in exchange, was promised a prison sentence of no more than nine
years but not less than 3
Initially, defendant argues that her appeal waiver and guilty plea were not knowing, voluntary and intelligent. A review of the plea colloquy establishes that defendant made a voluntary and knowing choice to waive her right to appeal (see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Callahan, 80 NY2d 273, [*2]279-280 [1992]).[FN*]While defendant's challenge to the voluntariness of her plea survives that appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]), the record on appeal does not reflect that she challenged her guilty plea on this ground in a motion to withdraw her plea and, as such, this claim is unpreserved for appellate review (see People v Watson, 115 AD3d 1016, 1017 [2014]; People v White, 104 AD3d 1056, 1056 [2013], lv denied 21 NY3d 1018 [2013]). In any event, we find that the plea was knowing, voluntary and intelligent (see People v Tyrell, 22 NY3d 359, 365-366 [2013]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]).
Finally, given that County Court abided by its sentencing commitment, defendant's challenge to the sentence as harsh and excessive is precluded by her valid and unqualified appeal waiver (see People v Lopez, 6 NY3d at 255-256; People v Martin, 105 AD3d 1266, 1267 [2013]).
Lahtinen, Garry, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.