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People v. Barrett

State of New York Supreme Court, Appellate Division Third Judicial Department


March 25, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
VANCE BARRETT, APPELLANT.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: February 11, 2010

Before: Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered January 27, 2009, convicting defendant upon his plea of guilty of the crime of assault in the third degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to the crime of assault in the third degree and waived his right to appeal. Pursuant to the plea agreement, defendant was to receive the agreed-upon sentence of six months in jail. After defendant was found to be in violation of the plea agreement, County Court imposed an enhanced sentence of 11 months in jail. Defendant now appeals.

We affirm. Defendant's contention that his plea was not voluntarily made, which survives his valid waiver of the right to appeal, is not preserved for our review due to his failure to move to withdraw his plea or vacate his judgment of conviction (see People v Brennan, 62 AD3d 1167, 1168 [2009], lv denied 13 NY3d 794 [2009]; People v Grant, 60 AD3d 1202, 1202 [2009]). Moreover, to the extent that defendant challenges County Court's rulings related to his suppression motion, such challenge is precluded by his waiver of the right to appeal (see People v Perry, 50 AD3d 1244, 1245 [2008], lv denied 70 NY3d 963 [2008]).

Mercure, J.P., Lahtinen, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

20100325

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