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People v. Audette

Supreme Court of New York, Third Department

July 18, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
ROBERT L. AUDETTE, Appellant

Calendar Date: June 6, 2013

Linda Berkowitz, Saratoga Springs, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: Peters, P.J., Lahtinen, Spain and Garry, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered November 7, 2011, convicting defendant upon his plea of guilty of the crimes of disseminating indecent material to a minor in the second degree and failure to register an Internet account or identifier under the Sex Offender Registration Act.

Defendant, a registered sex offender, waived indictment and agreed to be prosecuted by a superior court information charging him with the crimes of disseminating indecent material to a minor in the second degree and failure to register an Internet account or identifier under the Sex Offender Registration Act. He pleaded guilty to these charges and waived his right to appeal orally and in writing. Defendant was thereafter sentenced, in accordance with the plea agreement, to an aggregate prison term of 1½ to 3 years.

Defendant's sole contention on appeal is that his sentence is harsh and excessive. Initially, to the extent that defendant's recitation of the underlying facts in his brief implies an additional claim that his guilty plea was not knowing or voluntary, we note that, while such a contention would not be precluded by defendant's waiver of the right to appeal, it was not preserved for our review inasmuch as the record does not reveal that he made a motion to withdraw his plea or to vacate the judgment of conviction (see People v McGowan, 98 A.D.3d 1192, 1192 [2012]; People v Dixon, 66 A.D.3d 1237, 1237 [2009], lv denied 13 N.Y.3d 906 [2009]). Moreover, the narrow exception to the preservation requirement is inapplicable inasmuch as defendant made no statements inconsistent with his guilt or which called into question the voluntariness of his plea (see People v Secore, 102 A.D.3d 1059, 1060 [2013]; People v Scribner, 77 A.D.3d 1022, 1023 [2010], lv denied 16 N.Y.3d 746 [2011]).

Finally, on the harsh and excessive issue, defendant is "precluded from raising this claim given his valid waiver of the right to appeal" (People v Cano, 93 A.D.3d 994, 994 [2012], lv denied 19 N.Y.3d 995 [2012]; see People v Lewis, 95 A.D.3d 1442, 1443 [2012], lv denied 19 N.Y.3d 998 [2012]). Accordingly, we find no basis to disturb the judgment of conviction.

Peters, P.J., Lahtinen, Spain and Garry, JJ., concur.

ORDERED that the judgment is affirmed.


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