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People v. Moses

Supreme Court of New York, Third Department

October 3, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
WILLIE N. MOSES, Appellant.

Calendar Date: September 6, 2013

Lisa A. Burgess, Indian Lake, for appellant.

Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), for respondent.

Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered May 7, 2012, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In full satisfaction of two indictments, two divestitures and several uncharged crimes, defendant pleaded guilty to burglary in the second degree and waived his right to appeal. Defendant thereafter was sentenced to the agreed-upon prison term of seven years, to be followed by five years of postrelease supervision, and was ordered to pay restitution. Defendant now appeals.

We affirm. Although defendant's challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal (see People v Dame, 100 A.D.3d 1032, 1033 [2012], lv denied 21 N.Y.3d 1003 [2013]), this issue is not preserved for our review, as the record before us fails to reflect that defendant moved to withdraw his plea or vacate the judgment of conviction (see People v Williams, 101 A.D.3d 1174, 1174 [2012]; People v Leszczynski, 96 A.D.3d 1162, 1162 [2012], lv denied 19 N.Y.3d 998 [2012]). Moreover, the narrow exception to the preservation rule is inapplicable here, as defendant did not make any statements during the plea allocution that were inconsistent with his guilt or negated an essential element of the crime to which he pleaded guilty (see People v Santana, 95 A.D.3d 1503, 1504 [2012]). Similarly, to the extent that defendant argues that he was denied the effective assistance of counsel (and assuming such claim impacts the voluntariness of his plea), defendant's claim survives his appeal waiver but also is unpreserved in the absence of an appropriate postallocution motion (see People v Lazore, 102 A.D.3d 1017, 1017-1018 [2013]; People v Walton, 101 A.D.3d 1489, 1490 [2012], lv denied 20 N.Y.3d 1105 [2013]). Finally, any challenge to the factual sufficiency of the indictment was forfeited by defendant's guilty plea (see People v Cruz, 104 A.D.3d 1022, 1024 [2013]).

Lahtinen, J.P., Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.


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