People v Tolliver
2012 NY Slip Op 00859 [92 AD3d 1024]
February 9, 2012
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 28, 2012


The People of the State of New York, Respondent, v Tiffany Tolliver, Appellant.

[*1] Tracy Dam Chieco, Palatine Bridge, for appellant.

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

Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered July 8, 2008, convicting defendant upon her plea of guilty of the crime of robbery in the first degree.

In satisfaction of a 16-count indictment and another pending charge, defendant pleaded guilty to robbery in the first degree and waived her right to appeal. Defendant was sentenced to the agreed-upon prison term of 18 years followed by a period of postrelease supervision. Defendant now appeals.

We are unpersuaded by defendant's contention that her appeal waiver was not knowing, intelligent and voluntary. The plea minutes establish that County Court distinguished the waiver of the right to appeal from the rights forfeited by the guilty plea, and defendant affirmed that she understood the appeal waiver (see People v McDuffie, 89 AD3d 1154, 1156 [2011]; People v Benson, 87 AD3d 1228 [2011]). Moreover, the court confirmed that defendant executed a counseled written appeal waiver (see People v McDuffie, 89 AD3d at 1156).

To the extent that defendant challenges the voluntariness of her plea, it is not preserved for our review inasmuch as she did not move to withdraw her plea or vacate the judgment of [*2]conviction (see People v Norton, 88 AD3d 1027, 1028 [2011]). Nor does the narrow exception to the preservation rule apply here inasmuch as a review of the plea colloquy reveals that defendant made no statements to cast doubt upon her guilt or to negate an essential element of the crime to which she pleaded guilty (see id.).

Mercure, A.P.J., Spain, Rose and McCarthy, JJ., concur. Ordered that the judgment is affirmed.