Calendar Date: April 26, 2018Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.__________Amanda FiggsGanter, Albany, for appellant.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 March 22, 2016, convicting defendant uponhis plea of guilty of the crime of forgery in the second degree.Defendant was charged in a five-count indictment withforgery in the second degree and other unrelated crimes stemmingfrom his theft of a credit card from a woman’s purse andsubsequent use of it to make a purchase at a market. Pursuant toa negotiated plea agreement that included a waiver of appeal andsatisfied all charges in the indictment and numerous othercharges, defendant pleaded guilty to forgery in the first degreeand signed a written waiver of appeal. County Court thereafterimposed the agreed-upon prison sentence of 2ó to 5 years, as anadmitted second felony offender. Defendant now appeals.We affirm. Defendant’s contention that his guilty plea wasnot knowing, voluntary and intelligent survives his unchallengedappeal waiver but was not preserved by an appropriatepostallocution motion on this ground, despite an adequateopportunity to do so (see CPL 220.60 [3]; People v Forest, 141AD3d 967, 968 [2016], lv denied 28 NY3d 1145 [2017]).1 Moreover,the narrow exception to the preservation rule is inapplicable(see People v Williams, 27 NY3d 212, 220 [2016]; People v Lopez,71 NY2d 662, 666 [1988]). During the plea allocution, defendantadmitted that he used the victim’s credit card, but initiallystated that he “didn’t sign nothing” and “[n]ever signed thereceipt.” County Court engaged defendant in a further inquiry,explaining that the People were in possession of a signedreceipt, which defendant was captured on video signing. Afterdefendant conferred with counsel, he admitted under oath that hehad signed the receipt without authorization and pleaded guilty.Thus, the court satisfied its duty of further inquiry and ensuredthat defendant admitted all of the elements of the crime,establishing that the guilty plea was knowing, voluntary andintelligent (see People v Lopez, 71 NY2d at 666-668; People vYoung, 158 AD3d 955, 956 [2018]; see also People v Cuevas, 140AD3d 1313, 1317 [2016]). “Having failed to express, in any way,dissatisfaction with the court’s remedial action [despite ampleopportunity to do so prior to imposition of sentence], defendanthas waived any further challenge to the allocution, and thus noissue is preserved” (People v Lopez, 71 NY2d at 668; see People vWilliams, 27 NY3d at 222-223).With regard to the sentence, the record belies defendant’sclaim that County Court failed to exercise its discretion indeclining to grant judicial diversion (see CPL 216.05 [1]). Tothat end, the court considered defendant’s request and determinedthat he was not an appropriate candidate, and defendant was “notautomatically entitled to judicial diversion” (People v Clarke,155 AD3d 1242, 1243 [2017] [internal quotation marks and citationomitted], lv denied 30 NY3d 1114 [2018]; cf. CPL 216.05 [4]),which was never a part of the plea agreement. His challenges tothe court’s discretionary decision not to have him evaluated for,and to deny, judicial diversion and to the agreed-upon sentenceas harsh and excessive are precluded by his waiver of appeal (seePeople v Wood, 150 AD3d 1544, 1545 [2017]). We have examineddefendant’s remaining claims and determined that they lack merit.Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
