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People v. Alvarez

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


May 6, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
LUIS ALVAREZ, APPELLANT.

The opinion of the court was delivered by: Cardona, P.J.

MEMORANDUM AND ORDER

Calendar Date: March 22, 2010

Before: Cardona, P.J., Mercure, Spain, Kavanagh and Garry, JJ.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 10, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

In satisfaction of a three-count indictment, defendant pleaded guilty to a reduced charge of criminal possession of a controlled substance in the fifth degree. Pursuant to a negotiated plea agreement, defendant waived his right to appeal and was sentenced to two years in prison followed by one year of postrelease supervision.

Defendant's challenge to the voluntariness of his plea, which survives his appeal waiver, is not preserved for our review absent a motion to withdraw the plea or vacate the judgment of conviction (see People v Scitz, 67 AD3d 1251 [2009]). Furthermore, inasmuch as a review of the plea colloquy does not "clearly cast[] significant doubt upon . . . defendant's guilt or otherwise call[] into question the voluntariness of the plea," we are unpersuaded by defendant's contention that the narrow exception to the preservation doctrine applies (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Wilson, 16 AD3d 781, 781 [2005]).

Mercure, Spain, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

20100506

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