Calendar Date: April 26, 2018Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.__________Craig S. Leeds, Albany, for appellant.P. David Soares, District Attorney, Albany (Emily A.Schultz of counsel), for respondent.__________Garry, P.J.Appeal from a judgment of the County Court of Albany County(Lynch, J.), rendered July 24, 2015, convicting defendant uponhis plea of guilty of the crimes of attempted disseminatingindecent material to minors in the first degree and possessing asexual performance by a child.Defendant waived indictment and agreed to be prosecutedpursuant to a superior court information (hereinafter SCI)charging him with attempted disseminating indecent material tominors in the first degree (count 1) and possessing a sexualperformance by a child (count 2). As part of the plea agreement,defendant, who was facing additional charges in another state,was required to waive his right to appeal. In exchange for hisguilty plea, defendant would be sentenced to a prison term offour years followed by 10 years of postrelease supervision undercount 1 of the SCI and a prison term of 1 to 3 years under count2 of the SCI — said terms to run concurrently; additionally,defendant would not be prosecuted on the out-of-state charges.Following defendant’s guilty plea, County Court imposed theagreed-upon terms of imprisonment. Defendant appeals.We affirm. Defendant’s challenge to the factualsufficiency of his plea is precluded by his valid andunchallenged waiver of the right to appeal (see People vRobinson, 155 AD3d 1252, 1253 [2017], lv denied 30 NY3d 1119[2018]; People v Smith, 155 AD3d 1244, 1245 [2017]) and, further,is unpreserved for our review in the absence of an appropriatepostallocution motion (see People v Rodriguez, 154 AD3d 1013,1014 [2017]; People v Dejesus, 146 AD3d 1077, 1078 [2017]). Tothe extent that defendant’s brief may be read as contesting thevoluntariness of the plea itself, as well as defendant’sineffective assistance of counsel claim (to the degree that itimpacts upon the voluntariness of his plea), such claims –although they survive a valid appeal waiver — are similarlyunpreserved for our review (see People v Sumter, 157 AD3d 1125,1125-1126 [2018]; People v Evans, 156 AD3d 1246, 1246-1247[2017]). Contrary to defendant’s assertion, the narrow exceptionto the preservation requirement was not triggered here, as he didnot make any statements during the plea colloquy that eithernegated an essential element of the crime or otherwise calledinto question his guilt (see People v Evans, 156 AD3d at 1247).Finally, defendant’s challenge to the agreed-upon sentenceimposed is precluded by his waiver of appeal (see People vBrothers, 155 AD3d 1257, 1258 [2017]).Egan Jr., Clark, Mulvey and Rumsey, JJ., concur.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
