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The People of the State of v. James Dean

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


November 23, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES DEAN, APPELLANT.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered June 18, 2010, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fourth degree.

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

MEMORANDUM AND ORDER

Calendar Date: October 14, 2011

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

Defendant pleaded guilty to criminal sale of a controlled substance in the fourth degree in full satisfaction of a two-count indictment and an uncharged crime. County Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon term of imprisonment of four years, to be followed by two years of postrelease supervision. Defendant now appeals and we affirm.

Defendant's sole claim, that his plea was not voluntarily entered, survives any waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Jean-Francois, 82 AD3d 1366, 1366-1367 [2011], lv denied 17 NY3d 797 [2011]). In light of defendant's failure to move to withdraw his plea or vacate the judgment of conviction, however, his challenge to the voluntariness of his plea is not preserved for our review (see People v Hill, 81 AD3d 1040, 1040 [2011]; People v Dishaw, 81 AD3d 1035, 1036 [2011], lv denied 16 NY3d 858 [2011]). In any event, a review of the plea proceedings revealed that although defendant was at first equivocal regarding whether or not he wanted to accept the plea agreement, after County Court repeatedly permitted him time to consult with his attorney, he knowlingly and voluntarily accepted the plea agreement (see People v Barrier, 7 AD3d 885, 885 [2004], lvs denied 3 NY3d 670 [2004]).

Rose, Kavanagh, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

Robert D. Mayberger

Clerk of the Court

ENTER:

20111123

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