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 (Herrick, 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 a multicount indictment. Pursuant to the plea agreement, defendant waived his right to appeal and County Court agreed to impose a prison sentence of at least 1½ years followed by 1½ years of postrelease supervision but no more than eight years followed by three years of postrelease supervision. Moreover, it was agreed that this sentence was to run concurrently to a sentence imposed upon defendant's conviction on a separate charge pending in Albany County. The court adhered to the plea agreement and imposed a prison sentence of six years followed by two years of postrelease supervision, to run concurrently to the previously specified sentence. Defendant now appeals.
Defendant's challenge to the voluntariness of his plea is not preserved for our review inasmuch as the record does not reflect that defendant moved 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 ). Moreover, the narrow exception to the preservation requirement is not triggered, as nothing said during the plea colloquy cast 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 ). To the extent that defendant's ineffective assistance of counsel argument relates to the voluntariness of his plea, it is likewise unpreserved (see People v Walton, 101 A.D.3d 1489, 1490 , lv denied 20 N.Y.3d 1105 ; People v Jiminez, 96 A.D.3d 1109, 1110 ). Finally, defendant's challenge to the severity of his sentence is precluded 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 Richardson, 83 A.D.3d at 1292).
Rose, J.P., Stein and Garry, JJ., ...