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People v. McKenzie

Supreme Court of New York, Appellate Division, Third Department

October 1, 2009

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
TROY McKENZIE, Appellant.

Calendar Date: September 18, 2009

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered February 22, 2007, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Kimberly M. Wells, Glens Falls, for appellant.

Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.

Before: Cardona, P.J., Peters, Kavanagh, Stein and McCarthy, JJ.

MEMORANDUM AND ORDER

Stein, J.

Defendant waived indictment and pleaded guilty to a superior court information charging him with criminal sale of a controlled substance in the third degree. Pursuant to the plea agreement, defendant waived his right to appeal and was sentenced as a second felony offender to a term of imprisonment of 4½ years, to be followed by two years of postrelease supervision. Defendant now appeals and we affirm.

Defendant's contention that his waiver of the right to appeal was invalid, due to County Court's failure during allocution to distinguish the right to appeal from the rights forfeited by his guilty plea, is unpersuasive; defendant, through his counseled written waiver, acknowledged his right to appeal, that he had discussed the waiver of that right and its consequences with counsel, and that he was waiving the right voluntarily (see People v Ramirez, 42 A.D.3d 671, 671-672 [2007]; see also People v Ramos, 7 N.Y.3d 737, 738 [2006]; People v Gilmour, 61 A.D.3d 1122, 1123 [2009], lv denied 12 N.Y.3d 925 [2009]; People v Robles, 53 A.D.3d 686, 687 [2008], lv denied 11 N.Y.3d 794 [2008]; People v Getter, 52 A.D.3d 1117, 1118 [2008]; People v Cross, 42 A.D.3d 586, 587 [2007], lv denied 9 N.Y.3d 960 [2007]). Defendant also contends that his plea was not entered voluntarily. While this issue survives his waiver of the right to appeal, it is not preserved for our review insofar as defendant failed to move to withdraw his plea or vacate his judgment of conviction (see People v Dixon, 62 A.D.3d 1214, 1214 [2009]; People v Nunez, 56 A.D.3d 897, 898 [2008], lv denied 11 N.Y.3d 928 [2009]). Moreover, "the narrow exception to the preservation rule is inapplicable inasmuch as defendant did not make any statements during his plea allocution which negated an essential element of the crime or otherwise cast significant doubt on his guilt" (People v Wright, 40 A.D.3d 1314, 1314 [2007]; see People v Cintron, 62 A.D.3d 1157, 1158 [2009]).

Cardona, P.J., Peters, Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.


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