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The People of the State of v. Dandre Jones

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


October 6, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DANDRE JONES, APPELLANT.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 12, 2010, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.

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

MEMORANDUM AND ORDER

Calendar Date: September 9, 2011

Before: Mercure, J.P., Malone Jr., Kavanagh, McCarthy and Egan Jr., JJ.

Defendant was charged in an indictment with assault in the first degree, assault in the second degree and criminal possession of a weapon in the third degree. Pursuant to a negotiated plea agreement, defendant pleaded guilty to a reduced count of attempted assault in the first degree in full satisfaction of the indictment and waived his right to appeal. County Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon term of imprisonment of nine years, to be followed by five years of postrelease supervision. Defendant now appeals.

We affirm. Defendant's failure to move to withdraw his plea or vacate the judgment of conviction renders his challenge to the voluntariness and factual sufficiency of his plea unpreserved for our review (see People v Glynn, 73 AD3d 1290, 1291 [2010]; People v Johnson, 54 AD3d 1133, 1133 [2008]). Further, the narrow exception to the preservation requirement is inapplicable here, inasmuch as defendant did not make any statements during the plea allocution that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v Smith, 81 AD3d 1034, 1035 [2011], lv denied 16 NY3d 899 [2011]; People v Spears, 78 AD3d 1380, 1380 [2010]). Finally, defendant's waiver of the right to appeal precludes his claim that the sentence imposed is harsh and excessive (see People v Tatum, 82 AD3d 1411, 1412 [2011], lv denied 17 NY3d 810 [2011]).

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

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20111006

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