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People v. Davis

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


June 10, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SHAMEL DAVIS, ALSO KNOWN AS CRUDDY, APPELLANT.

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

MEMORANDUM AND ORDER

Calendar Date: April 20, 2010

Before: Mercure, J.P., Spain, Lahtinen, Malone Jr. and Kavanagh, JJ.

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered December 16, 2004, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

A 13-count indictment was returned against defendant which included two counts of murder in the second degree. In satisfaction of all counts of the indictment, defendant pleaded guilty to one count of criminal possession of a weapon in the second degree and waived his right to appeal in return for a negotiated sentence of 14 years in prison followed by five years of postrelease supervision. He now appeals claiming that his plea was involuntary, he received ineffective assistance of counsel and his sentence was harsh and excessive.

While defendant's waiver of appeal does not foreclose his challenge to the voluntariness of his plea or his related claim of ineffective assistance of counsel (see People v Walley, 63 AD3d 1284, 1285 [2009]), these arguments are unpreserved for our review since he did not move to withdraw his plea or vacate his judgment of conviction (see People v Scitz, 67 AD3d 1251, 1251-1252 [2009]). Moreover, defendant made no statements during the allocution that cast any doubt on his guilt or the voluntariness of his plea which would provide an exception to the preservation rule (see People v Brennan, 62 AD3d 1167, 1168 [2009], lv denied 13 NY3d 794 [2009]). Nevertheless, the record provides no support for either claim. Defendant's last argument that the bargained for sentence was harsh and excessive is precluded by his valid appeal waiver (see People v Borom, 55 AD3d 1041, 1042 [2008]).

Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed.

20100610

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