Calendar Date: April 22, 2013
John A. Cirando, Syracuse, for appellant.
Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered December 12, 2011, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant, a prison inmate, was charged in an indictment with promoting prison contraband in the first degree after a makeshift metal weapon was found secreted in his shoe. He thereafter pleaded guilty to attempted promoting prison contraband in the first degree and waived his right to appeal. In accordance with the plea agreement, defendant was sentenced to a prison term of 1½ to 3 years. He now appeals.
The record does not reflect that defendant moved to withdraw his plea or to vacate the judgment of conviction and, indeed, he declined an opportunity to withdraw his plea at sentencing. His challenge to the sufficiency of the plea allocution is accordingly unpreserved for our review and we do not view this case as falling within the narrow exception to the preservation rule (see People v McNair, 13 N.Y.3d 821, 822 ; People v Steed, 17 A.D.3d 928, 929 , lv denied 5 N.Y.3d 770 ; see also People v Sardinas 159 A.D.2d 963, 963 , lv denied 76 N.Y.2d 742 ). Regardless, the record demonstrates that County Court explored defendant's doubts as to whether he knowingly possessed the item and confirmed that his decision to plead guilty was a knowing and voluntary one (see People v Ferro, 101 A.D.3d 1243, 1244 , lv denied 20 N.Y.3d 1098 ; People v Tavares, 282 A.D.2d 880, 881 , lv denied 96 N.Y.2d 868 ; cf. People v Hill, 16 N.Y.3d 811, 813-814 ).
While defendant's contention that he received the ineffective assistance of counsel arguably survives even a valid appeal waiver, it is unpreserved for our review given his failure to move to withdraw his guilty plea or vacate the judgment of conviction (see People v Walton, 101 A.D.3d 1489, 1490 , lv denied 20 N.Y.3d 1105 ; People v Aitken, 101 A.D.3d 1383, 1384 ). We would, regardless, conclude upon the record before us that defendant was afforded meaningful representation (see People v Trombley, 91 A.D.3d 1197, 1200-1201 ; People v Herringshaw, 83 A.D.3d 1133, 1134 ).
Stein, McCarthy and Egan Jr., JJ., ...