| People v Miazga |
| 2018 NY Slip Op 08585 [167 AD3d 1167] |
| December 13, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joseph A. Miazga Jr., Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered March 9, 2016, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.
Defendant waived indictment and pleaded guilty as charged in a superior court informationto felony driving while intoxicated stemming from his admitted conduct in driving whileintoxicated on September 8, 2015. Defendant also pleaded guilty the same day to a separatecharge of felony driving while intoxicated for his actions on February 21, 2015. Pursuant to aplea agreement with regard to the September 2015 charge, defendant waived his right to appealand admitted his prior, 2010 misdemeanor driving while intoxicated conviction. County Courtthereafter imposed the agreed-upon sentence of six months in jail with five years of probation, tobe served concurrently with the same sentence imposed on the February 2015conviction,[FN*]andrevoked defendant's license. Defendant appeals from the judgment of conviction stemming fromthe September 2015 charge.
We affirm. Defendant contends that his guilty plea was not knowing, voluntary andintelligent in that he had previously maintained his innocence and was pressured into pleadingguilty. Although defendant's challenge to the voluntariness of his plea is not precluded by hiswaiver of appeal, it is unpreserved for our review as the record does not reflect that he made anappropriate postallocution motion to withdraw his plea despite ample opportunity to do so priorto imposition of sentence (see CPL 220.60 [3]; People v Williams, 27 NY3d 212, 219-220 [2016]; People v Jackson, 159 AD3d 1276,1277 [2018], lv denied 31 NY3d 1149 [2018]). Moreover, the narrow exception to thepreservation requirement was not triggered, as defendant did not make any statements during hisplea allocution or at sentencing that were inconsistent with his guilt or otherwise called intoquestion the voluntariness of his plea (see People v Williams, 27 NY3d at 219-220;People v Lopez, 71 NY2d 662, 666 [1988]; People v Gresham, 151 AD3d 1175, 1177-1178 [2017]). To theextent that defendant asserts that defense counsel failed to conduct discovery or pursue pretrialhearings, this implicates matters outside of the record that are more appropriately addressed in amotion pursuant to CPL article 440 (seePeople v Duggins, 161 AD3d 1445, 1446 [2018], lv denied 32 NY3d 937[2018]).
McCarthy, J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that judgment isaffirmed.
Footnote *:While defendant had beenpromised a five-year term of probation on the February 2015 charge, he failed to appear on theoriginal date set for sentencing on both matters. On March 9, 2016, County Court imposed anenhanced sentence on the February 2015 charge of six months in jail and five years of probation,and the identical sentence on the September 2015 conviction was ordered to run concurrently tothat sentence.