Calendar Date: September 12, 2013
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Before: Rose, J.P., Stein, McCarthy and Garry, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered April 11, 2011, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree in satisfaction of an indictment charging him with criminal sale of a controlled substance in the third degree. In connection with the plea agreement, defendant waived his right to appeal and County Court committed to a prison sentence of no more than eight years followed by three years of postrelease supervision. Defendant failed to appear for the initial sentencing date, prompting County Court to issue a bench warrant for his arrest. Upon defendant's appearance at the next scheduled date, County Court sentenced defendant to a prison term of eight years, followed by three years of postrelease supervision. Defendant now appeals.
Although defendant's claim that his plea was involuntary survives his waiver of the right to appeal, the record before us does not reflect that defendant preserved this argument for our review by making a motion to withdraw the plea or vacate the judgment of conviction (see People v Musser, 106 A.D.3d 1334, 1335 ; People v Richardson, 83 A.D.3d 1290, 1291 , lv denied 17 N.Y.3d 821 ; People v Singh, 73 A.D.3d 1384, 1384-1385 , lv denied 15 N.Y.3d 809 ). Nor does the record reveal any basis upon which the exception to the preservation requirement would be triggered, as nothing in the minutes of the plea proceeding casts doubt upon defendant's guilt or the voluntariness of his plea (see People v Benson, 100 A.D.3d 1108, 1109 ; People v Planty, 85 A.D.3d 1317, 1318 , lv denied 17 N.Y.3d 820 ; People v Board, 75 A.D.3d 833, 833 ). To the extent that defendant's ineffective assistance of counsel argument relates to the voluntariness of his plea, it also survives his waiver of the right to appeal, but is likewise unpreserved (see People v Walton, 101 A.D.3d 1489, 1490 , lv denied 20 N.Y.3d 1105 ; People v Benson, 100 A.D.3d at 1109; People v Singh, 73 A.D.3d at 1385). Finally, defendant's challenge to the severity of the sentence is foreclosed by his valid waiver of the right to appeal (see People v Lopez, 97 A.D.3d 853, 853-854 , lv denied 19 N.Y.3d 1027 ; People v Singh, 73 A.D.3d at 1385).
Rose, J.P., Stein and Garry, JJ., ...