Calendar Date: June 8, 2018Before: McCarthy, J.P., Egan Jr., Lynch, Clark andPritzker, JJ.__________John R. Trice, Elmira, for appellant.Matthew VanHouten, District Attorney, Ithaca (Andrew J.Bonavia of counsel), for respondent.__________Egan Jr., J.Appeal from a judgment of the County Court of TompkinsCounty (Cassidy, J.), rendered August 15, 2016, convictingdefendant upon his pleas of guilty of the crimes of sexual abusein the first degree and rape in the second degree.Defendant was charged in an indictment with rape in thesecond degree and endangering the welfare of a child. Six monthslater, he was charged in a superior court information with sexualabuse in the first degree. He thereafter pleaded guilty ascharged in the superior court information and to rape in thesecond degree in full satisfaction of the indictment and waivedthe right to appeal. County Court imposed the agreed-uponconcurrent sentences of six months in jail, followed by 10 yearsof postrelease supervision. Defendant appeals.We affirm. Contrary to defendant’s contention, the pleacolloquy and written appeal waivers demonstrate that heknowingly, intelligently and voluntarily waived the right toappeal (see People v Scott, 139 AD3d 1266, 1266 [2016], lv denied27 NY3d 1155 [2016]; People v Barton, 126 AD3d 1238, 1239 [2015],lv denied 26 NY3d 1142 [2016]).Defendant’s challenges to the factual sufficiency of hisallocution to the rape charge and to the voluntariness of hisguilty plea to the sexual abuse charge are not preserved for ourreview, as the record does not reflect that he made anappropriate postallocution motion (see People v Bailey, 158 AD3d948, 948 [2018]; People v Hankerson, 147 AD3d 1153, 1153 [2017],lv denied 29 NY3d 998 [2017]). Further, defendant did not makeany statements during the plea colloquy that were inconsistentwith his guilt of the rape charge or otherwise called intoquestion the voluntariness of the plea so as to trigger thenarrow exception to the preservation rule (see People v Strong,124 AD3d 992, 992 [2015]; People v Saddlemire, 50 AD3d 1317, 1318[2008]).The narrow exception to the preservation rule is also notapplicable to the guilty plea on the sexual abuse charge, “asCounty Court did not accept [the] plea without further inquiryafter the allocution cast significant doubt upon . . .defendant’s guilt or otherwise called into question thevoluntariness of the plea” (People v Ferro, 101 AD3d 1243, 1244[2012], lv denied 20 NY3d 1098 [2013] [internal quotation marks,brackets and citation omitted]; see People v Lopez, 71 NY2d 662,666 [1988]). Although defendant initially indicated at the pleacolloquy that the sexual contact related to the sexual abusecharge was consensual, negating the required element of forciblecompulsion for that charge (see Penal Law § 130.65 [1]), CountyCourt conducted a sufficient inquiry and, after defendant wasallowed a recess to speak with counsel, he admitted that thesexual contact was not consensual and that force was involved(see People v Edwards, 55 AD3d 1337, 1338 [2008], lv denied 11NY3d 924 [2009]; People v Tavares, 282 AD2d 880, 880-881 [2001],lv denied 96 NY2d 868 [2001]).Defendant’s claim that his pleas were not voluntarybecause County Court should not have accepted his plea withoutinquiring into his mental competency to plead guilty is similarlyunpreserved for lack of an appropriate postallocution motion (seePeople v Hilts, 157 AD3d 1123, 1124 [2018]; People v Vandemark,117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]). Inany event, the record reflects that, prior to entering his pleas,defendant’s competency to proceed was the subject of proceedingsunder CPL article 730, resulting in County Court issuing an orderof commitment on February 10, 2016. On April 15, 2016, defendantwas deemed no longer incapacitated and fit to proceed, anddefendant made no statements during the plea proceedings “thatcalled into question the voluntariness of his plea so as to alertthe court of the need to inquire as to his competency or to holda competency hearing” (People v Duffy, 126 AD3d 1142, 1142[2015]; accord People v Hilts, 157 AD3d at 1124).Finally, defendant’s contention that he was denied theeffective assistance of counsel survives his appeal waivers tothe extent it impacts the voluntariness of his pleas, but isunpreserved due to the lack of a postallocution motion (seePeople v Sumter, 157 AD3d 1125, 1126 [2018]; People v Lewis, 143AD3d 1183, 1185 [2016]). Notably, his claim that counsel wasineffective for not more thoroughly investigating possibledefenses to the charges involves matters outside of the recordand are more properly the subject of a CPL article 440 motion(see People v Park, 159 AD3d 1132, 1134 [2018], lv denied ___NY3d ___ [May 30, 2018]; People v Shiels, 93 AD3d 992, 993[2012]).McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur.ORDERED that the judgment is affirmed.
