People v Smalls

People v Smalls 2015 NY Slip Op 04529 Decided on May 28, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 28, 2015
106511

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

JACQUELIN SMALLS, Appellant.

Calendar Date: April 24, 2015
Before: Peters, P.J., Garry, Egan Jr. and Lynch, JJ.

Keeley A. Maloney, Albany, for appellant.

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

Egan Jr., J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered December 9, 2013, convicting defendant upon her plea of guilty of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).

Defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. Defendant thereafter entered an Alford plea to one count of each crime, allocuted to the remaining two charges and waived her right to appeal. County Court sentenced defendant within the parameters of the plea agreement to an aggregate

prison term of three years followed by two years of postrelease supervision, to be served concurrently with a recently imposed sentence. Defendant now appeals.

We affirm. Defendant's claim of ineffective assistance of counsel, to the extent that it survives her appeal waiver, is unpreserved for our review inasmuch as the record does not reflect that she made an appropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014], lvs denied 24 NY3d 1084, 1089 [2014]). Defendant's remaining claim, that the sentence imposed is harsh and excessive, is precluded by her unchallenged appeal waiver (see People v Cisneros, 115 AD3d 1117, 1117 [2014], lv denied 24 NY3d 959 [2014]).

Peters, P.J., Garry and Lynch, JJ., concur.

ORDERED that the judgment is affirmed.