| People v McKeney |
| 2007 NY Slip Op 08313 [45 AD3d 974] |
| November 8, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MarkMcKeney, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered December 7, 2006, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fifth degree.
Defendant waived indictment by a grand jury and agreed to be prosecuted by a superior courtinformation charging him with the crime of criminal sale of a controlled substance in the fifthdegree. Pursuant to a negotiated plea agreement, defendant thereafter pleaded guilty with theunderstanding that the recommended sentence would be capped at 2 to 6 years in prison.Sentencing was deferred, however, to allow defendant to participate in a Drug Court program.After defendant twice absconded from Drug Court, he was sentenced to a prison term of 1 to 3years. Defendant now appeals.
Insofar as defendant waived his right to appeal and failed to move to withdraw his plea orvacate the judgment of conviction, his claim that his guilty plea was not voluntarily made is notpreserved for our review (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Guthinger, 36 AD3d1075, 1075 [2007], lv denied 8 NY3d 923 [2007]). Furthermore, as there is nothingin the record which casts significant doubt on his guilt or the voluntariness of his plea, noexception to the preservation rule applies (see People v Wagoner, 30 AD3d 629, 629 [2006]; People v Van Bramer, 26 AD3d672, 673 [2006], lv denied 7 NY3d 764 [2006]). In any event, [*2]defendant's contention, that he entered his plea without fullknowledge of its consequences and was unaware that violating the Drug Court program wouldlead to a prison sentence, is belied by the fact that County Court fully advised him of the rightshe was relinquishing as a result of his plea and ascertained that he understood those rights andthat the Drug Court participation agreement he signed at allocution clearly outlined theramifications of failing to complete the program. Therefore, we are satisfied that defendant's pleawas knowingly, intelligently and voluntarily made (see People v Escalante, 16 AD3d 984, 985 [2005], lvdenied 5 NY3d 788 [2005]; Peoplev Burdo, 1 AD3d 793, 794 [2003], lv denied 2 NY3d 761 [2004]).
Similarly, defendant's failure to move to withdraw his plea or vacate the judgment renderedhis claim of ineffective assistance of counsel as it relates to the knowing and voluntary nature ofhis plea unpreserved for review (seePeople v Baldwin, 36 AD3d 1024, 1024 [2007]; People v Fogarty, 35 AD3d 957, 958 [2006], lv denied 8NY3d 922 [2007]). Inasmuch as defendant's arguments focus on counsel's alleged failure toinvestigate the circumstances of his case, which lies outside the record, defendant's claims aremore properly suited to a CPL article 440 motion (see People v Douglas, 38 AD3d 1063, 1064 [2007], lvdenied 9 NY3d 843 [2007]). Finally, defendant's challenge to his sentence as harsh andexcessive is precluded by his valid waiver of appeal (see People v Sawyer, 41 AD3d 1089, 1090 [2007]; People v Smith, 37 AD3d 975,976 [2007]).
Crew III, J.P., Peters, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed.