| People v Swindell |
| 2010 NY Slip Op 03184 [72 AD3d 1340] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GeorgeSwindell, Appellant. |
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Peters, J.P. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered April 3, 2009, convicting defendant upon his plea of guilty of the crime of failure toregister or verify under the Sex Offender Registration Act.
Defendant, a registered sex offender, pleaded guilty to failure to register or verify aparticular Internet account with the appropriate state agency (see Correction Law§ 168-f [4]), waived his right to appeal and was sentenced to a prison term of1
To the extent that defendant challenges the factual sufficiency of his plea, this issue isprecluded by his valid waiver of the right to appeal (see People v Nesbitt, 23 AD3d 836, 837 [2005], lv denied6 NY3d 816 [2006]).[FN*]Although defendant's claim that his plea was [*2]involuntarysurvives his waiver of the right to appeal, this issue is not preserved for our review in light ofdefendant's failure to move to withdraw his plea or vacate the judgment of conviction (see People v Scitz, 67 AD3d 1251[2009]; People v Pump, 67 AD3d1041, 1041-1042 [2009], lv denied 13 NY3d 941 [2010]). Nor are we persuaded thatthe narrow exception to the preservation requirement was triggered here. Although the pleacolloquy reflects some initial indecisiveness on defendant's part, he ultimatelyelected—following detailed questioning by County Court—to plead guilty.Inasmuch as defendant admitted that he failed to notify the Division of Criminal Justice Servicesof a particular Internet account and conceded that such failure "wasn't a mistake," we do notview the allocution as a whole as being either inconsistent with defendant's guilt or otherwisecalling into question the voluntariness of his plea (see People v Nunez, 56 AD3d 897, 898 [2008], lv denied11 NY3d 928 [2009]; People vJeske, 55 AD3d 1057, 1058 [2008], lv denied 11 NY3d 898 [2008]). Rather, ourreview of the allocution reveals that defendant's plea was knowing, intelligent and voluntary.
As a final matter, defendant's claim that the sentence imposed was harsh and excessive isprecluded by his waiver of the right to appeal (see People v Dixon, 66 AD3d 1237, 1238 [2009], lvdenied 13 NY3d 906 [2009]; People v Wilson, 53 AD3d 928, 929 [2008], lv denied 11NY3d 858 [2008]).
Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant does not directlycontest the validity of his waiver of the right to appeal, but our review of the record satisfies usthat such waiver was knowing, intelligent and voluntary (see People v Muirhead, 67 AD3d 1258, 1259 [2009]).