Calendar Date: April 23, 2018Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey andPritzker, JJ.__________Craig S. Leeds, Albany, for appellant, and appellantpro se.P. David Soares, District Attorney, Albany (Vincent Starkof counsel), for respondent.__________Egan Jr., J.Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered January 30, 2015, convicting defendantupon his plea of guilty of the crime of robbery in the firstdegree.Defendant was charged in an indictment with multiple crimesarising from an incident in which he entered a restaurant,displayed a firearm and forcibly stole property from employeeswho were bound with duct tape. He pleaded guilty to robbery inthe first degree in satisfaction of the indictment and waived hisright to appeal, both orally and in writing. In accordance withthe terms of the plea agreement, he was sentenced to eight yearsin prison and five years of postrelease supervision, to runconsecutively to a sentence that he was serving on a priorrobbery conviction. Defendant appeals.Initially, we find defendant’s appeal waiver to be valid.Notably, the record discloses that County Court explained theseparate and distinct nature of the waiver and ascertained thatdefendant understood its consequences. Moreover, during the pleaproceedings, defendant read and signed the written appeal waiverafter conferring with counsel and reconfirmed his understandingto County Court. Thus, the record establishes that the waiverwas knowing, voluntary and intelligent, thereby precludingdefendant’s challenge to the severity of the sentence (see Peoplev Taylor, 144 AD3d 1317, 1318 [2016], lv denied 28 NY3d 1151[2017]; People v Clapper, 133 AD3d 1037, 1038 [2015], lv denied27 NY3d 995 [2016]).Defendant further contends that his guilty plea was notknowing, voluntary and intelligent because it was factuallyinsufficient and was accepted by County Court without furtherinquiry, despite defendant’s alleged protestations of innocence.Although this claim survives defendant’s appeal waiver, it hasnot been preserved for our review due to defendant’s concededfailure to make an appropriate postallocution motion (see Peoplev Evans, 156 AD3d 1246, 1247 [2017]; People v Bethea, 133 AD3d1033, 1034 [2015], lv denied 27 NY3d 992 [2016]). Likewise,defendant’s assertion that he was deprived of the effectiveassistance of counsel, to the extent that it impacts thevoluntariness of his plea, is unpreserved for the same reason(see People v Evans, 156 AD3d at 1247; People v Bethea, 133 AD3dat 1034). We find that the narrow exception to the preservationrule is inapplicable here as, contrary to defendant’s claim, therecord does not disclose that he asserted his innocence orotherwise made statements that cast doubt upon his guilt (seePeople v Lopez, 71 NY2d 662, 666 [1988]; People v Evans, 156 AD3dat 1247). Furthermore, insofar as defendant argues in his pro sesupplemental brief that his counsel was ineffective by advisinghim to plead guilty without accurately assessing the evidence orexplaining the proof needed to secure a conviction, this claimconcerns matters outside the record and is more properlyconsidered in the context of a CPL article 440 motion (see Peoplev Clapper, 133 AD3d at 1038; People v Pickett, 128 AD3d 1275,1276 [2015], lvs denied 26 NY3d 930, 933 [2015]).McCarthy, J.P., Aarons, Rumsey and Pritzker, JJ., concur.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
