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The People of the State of v. Qwali Williams

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


December 6, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
QWALI WILLIAMS, APPELLANT.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered February 4, 2011, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

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

MEMORANDUM AND ORDER

Calendar Date: November 19, 2012

Before: Peters, P.J., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

Defendant, an inmate, was charged in an indictment with two counts of promoting prison contraband in the first degree. He thereafter moved to dismiss the indictment on the ground that the People failed to honor his written request to appear before the grand jury. Following County Court's denial of the motion, defendant pleaded guilty to attempted promoting prison contraband in the first degree in full satisfaction of the charges. In accordance with the plea agreement, defendant was sentenced as a second felony offender to 11/2 to 3 years in prison, to run consecutively to the prison term he was already serving. He now appeals.

We affirm. Initially, defendant's claim that the indictment should be dismissed based upon the People's failure to honor his request to appear before the grand jury was waived by his guilty plea (see People v Johnson, 97 AD3d 990, 991 [2012]; People v Chappelle, 250 AD2d 878, 878-879 [1998], lv denied 92 NY2d 894 [1998]; People v Empey, 242 AD2d 839, 839 [1997], lv denied 91 NY2d 834 [1997]). Further, inasmuch as the record before us does not indicate that defendant moved to withdraw his plea or vacate the judgment of conviction, his challenge to the voluntariness of his plea has not been preserved for our review and the narrow exception to the preservation rule is not applicable, as nothing in the plea allocution cast doubt on his guilt or negated an essential element of the crime (see People v DeJesus, 96 AD3d 1295, 1295 [2012]; People v Clemons, 96 AD3d 1086, 1087 [2012], ___ NY3d ___ [Oct. 31, 2012]). Similarly, defendant's claim of ineffective assistance of counsel is unpreserved by his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Doe, 95 AD3d 1449, 1449 [2012], lvs denied 19 NY3d 995, 998 [2012]; People v Burnett, 93 AD3d 993, 993 [2012]). Finally, with regard to defendant's claim that his sentence is harsh and excessive, considering defendant's criminal history and mindful that he agreed to the sentence imposed, we find no extraordinary circumstances or an abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v LaSanta, 89 AD3d 1324, 1324 [2011]; People v Badmaxx, 89 AD3d 1243, 1243 [2011], lv denied 18 NY3d 881 [2012]).

Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121206

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