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The People of the State of v. andrea E. Lowe

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


November 17, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ANDREA E. LOWE, APPELLANT.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered April 14, 2010, convicting defendant upon her plea of guilty of the crime of forgery in the second degree.

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

MEMORANDUM AND ORDER

Calendar Date: October 17, 2011

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

Defendant was arrested and ultimately pleaded guilty to forgery in the second degree. Sentencing was adjourned to permit defendant to participate in a long-term drug rehabilitation program in an effort to avoid a prison term. Defendant's attempts at rehabilitation were unsuccessful and County Court thereafter sentenced defendant to a prison term of 2 to 6 years to run concurrently with a recently imposed prison term. Defendant appeals.

Initially, defendant challenges the validity of the waiver of the right to appeal. However, the record does not reflect that defendant waived her right to appeal either orally or in writing. To the extent that defendant challenges the voluntariness of the plea, that issue is unpreserved as she did not move to withdraw the plea or vacate the judgment of conviction (see People v Haskins, 86 AD3d 794, 796 [2011]), and we do not find the narrow exception to the preservation rule applicable (see People v Scribner, 77 AD3d 1022, 1023 [2010], lv denied 16 NY3d 746 [2011]). Finally, given defendant's extensive criminal history, her repeated failure to comply with the terms of the plea agreement to successfully participate in and complete rehabilitation (which required the issuance of two bench warrants) and her continued criminal conduct, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence (see e.g. People v Marshall, 246 AD2d 698 [1998]).

Mercure, J.P., Malone Jr., Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20111117

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