| People v Ramirez |
| 2007 NY Slip Op 09136 [45 AD3d 1108] |
| November 21, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RamonRamirez, Also Known as Ramon Romero, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered December 1, 2005, convicting defendant upon his plea of guilty of the crime of robberyin the third degree.
Defendant pleaded guilty to robbery in the third degree. In accordance with the negotiatedplea agreement, he was sentenced to a prison term of seven years with a period of postreleasesupervision and he waived his right to appeal. He was subsequently resentenced to a prison termof 3½ to 7 years. Despite his waiver of appeal, defendant now appeals[FN*]challenging the sufficiency of the plea allocution and the severity of the sentence imposed.
Defendant's voluntary waiver of his right to appeal precludes his challenge to the factualsufficiency of the plea allocution (seePeople v Bagley, 34 AD3d 992, 992 [2006], lv denied 8 [*2]NY3d 878 [2007]; People v Jackson, 30 AD3d 824, 824 [2006]). Moreover, his failureto move to withdraw the plea or vacate the judgment of conviction renders unpreserved for thisCourt's review any argument that his plea was rendered involuntary by the alleged insufficiencyof the allocution (see People vAlexander, 31 AD3d 885, 886 [2006]; People v Mabry, 27 AD3d 835, 836 [2006]). The exception to thepreservation rule is inapplicable here since defendant's factual recitation did not cast significantdoubt on his guilt by negating an essential element of the crime or otherwise call into questionthe voluntariness of his plea (see Peoplev Pagan, 36 AD3d 1163, 1164 [2007]; People v Palmer, 36 AD3d 1015, 1015 [2007], lv denied 8NY3d 989 [2007]; People vMainello, 29 AD3d 1175, 1176 [2006]).
With respect to defendant's argument that the sentence imposed was harsh and excessive, wereiterate that no notice of appeal was filed and served following his resentencing. In any event, inlight of defendant's knowing, voluntary and intelligent plea of guilty and waiver of the right toappeal, we would decline to review his contention that the sentence imposed is excessive (see People v Nugent, 31 AD3d976, 977 [2006], lv denied 8 NY3d 925 [2007]; People v Feller, 25 AD3d 881 [2006], lv denied 6 NY3d812 [2006]).
Mercure, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant has appealed onlyfrom the original judgment of conviction and not the judgment rendered upon resentencing.