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The People of the State of v. Timothy Hall Jr

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


November 23, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TIMOTHY HALL JR., APPELLANT.

Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered February 23, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.

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

MEMORANDUM AND ORDER

Calendar Date: October 14, 2011

Before: Spain, J.P., Rose, Kavanagh, Stein and Garry, JJ.

Defendant pleaded guilty to burglary in the first degree in full satisfaction of a 22-count indictment filed against him in connection with a home invasion in the Town of Catskill, Greene County. Pursuant to the negotiated plea agreement, defendant was sentenced to 81/2 years in prison followed by five years of postrelease supervision. Defendant now appeals.

Inasmuch as defendant's claim that his guilty plea was induced by an unfulfilled promise implicates the voluntariness of his plea, it is not precluded by defendant's valid appeal waiver (see People v Jones, 77 AD3d 1178, 1178 [2010], lv denied 16 NY3d 832 [2011]). However, defendant failed to preserve the argument by moving to withdraw his plea or vacate the judgment of conviction (see People v Jones, 77 AD3d at 1178; People v Oliver, 26 AD3d 675, 676 [2006], lv denied 7 NY3d 760 [2006]; People v Parsons, 3 AD3d 790, 791 [2004]).

To the extent that defendant's claim of ineffective assistance of counsel also implicates the voluntariness of his plea, it is similarly unpreserved. Furthermore, the narrow exception to the preservation rule is inapplicable here, inasmuch as defendant did not make any statements during the plea allocution that cast significant doubt on his guilt or tended to negate a material element of the crime (see People v Gantt, 84 AD3d 1642, 1643 [2011]).

Spain, J.P., Rose, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

Robert D. Mayberger

Clerk of the Court

ENTER:

20111123

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