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The People of the State of v. Angel L. Perez

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


March 24, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ANGEL L. PEREZ, APPELLANT.

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered September 8, 2009, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree and assault in the second degree.

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

MEMORANDUM AND ORDER

Calendar Date: February 8, 2011

Before: Lahtinen, J.P., Kavanagh, McCarthy and Garry, JJ.

Defendant pleaded guilty to burglary in the first degree and assault in the second degree and waived his right to appeal. County Court thereafter sentenced defendant, as agreed, to concurrent prison terms of five years, to be followed by 21/2 years of postrelease supervision. Defendant now appeals and we affirm.

Defendant's contention that his plea was not knowingly, intelligently or voluntarily entered and County Court should have vacated it is not preserved for our review due to his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Abrams, 75 AD3d 927, 928 [2010], lv denied 15 NY3d 918 [2010]; People v Palmo, 223 AD2d 952, 953 [1996]). Moreover, the narrow exception to the preservation rule is not applicable here (see People v Lopez, 71 NY2d 662, 666-667 [1988]). Although defendant was initially hesitant to admit to the facts relating to the burglary charge, County Court gave him time to consult with counsel prior to entering his plea and properly ensured that the plea was voluntary and that defendant understood the nature of the plea (see People v Swindell, 72 AD3d 1340, 1341 [2010], lv denied 15 NY3d 778 [2010]). Inasmuch as there was a factual basis for defendant's plea, his subsequent unsubstantiated protestations of innocence during the presentence investigation and at sentencing were insufficient to warrant a vacatur of his plea (see People v Chapple, 269 AD2d 621, 622 [2000], lv denied 94 NY2d 917 [2000]).

Lahtinen, J.P., Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

Robert D. Mayberger Clerk of the Court

ENTER:

20110324

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