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The People of the State of New York v. Gregory J. Thompson

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 29, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
GREGORY J. THOMPSON,
DEFENDANT-APPELLANT.

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered April 19, 2010.

People v Thompson

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 29, 2011

PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.

The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a forged instrument in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a forged instrument in the second degree (Penal Law §§ 110.00, 170.25). We reject defendant's contention that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently entered (see People v Lopez, 6 NY3d 248, 256). County Court " expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea' " (People v Porter, 55 AD3d 1313, lv denied 11 NY3d 899). Although the further contention of defendant that his guilty plea was not knowingly and voluntarily entered survives his valid waiver of the right to appeal (see People v Bland, 27 AD3d 1052, 1052-1053, lv denied 6 NY3d 892), defendant failed to preserve his contention for our review by failing to move to withdraw his plea or to vacate the judgment of conviction (see People v Smith, 48 AD3d 1171, lv denied 10 NY3d 964; Bland, 27 AD3d at 1052-1053). This case does not fall within the narrow exception to the preservation doctrine (see People v Lopez, 71 NY2d 662, 666; Smith, 48 AD3d at 1171).

Defendant failed to preserve for our review his further contention concerning the failure to comply with the procedural requirements set forth in CPL 400.21 (see People v Pellegrino, 60 NY2d 636, 637; People v Vega, 49 AD3d 1185, 1186, lv denied 10 NY3d 965). In any event, defendant waived strict compliance with the statute by admitting his commission of the prior felony conviction in open court (see Vega, 49 AD3d at 1186; People v Harris, 233 AD2d 959, lv denied 89 NY2d 1094).

We have reviewed defendant's remaining contentions and conclude that they are without merit.

Entered: April 29, 2011

Patricia L. Morgan Clerk of the Court

20110429

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