People v Harris

2008 NY Slip Op 04797 [51 AD3d 1335]

May 29, 2008

Appellate Division, Third Department

As corrected through Wednesday, July 16, 2008

The People of the State of New York, Respondent, v Betina Harris,Appellant.

—[*1]Michael C. Ross, Bloomingburg, for appellant.

P. David Soares, District Attorney, Albany (Brett Knowles of counsel), forrespondent.

Stein, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered January 11, 2007, convicting defendant upon her plea of guilty of two counts of thecrime of attempted burglary in the second degree.

Defendant was indicted on three counts of burglary in the second degree and one count eachof grand larceny in the fourth degree and robbery in the second degree, stemming from twoseparate incidents that occurred in June 2006. She entered a plea of guilty to two counts ofattempted burglary in the second degree in full satisfaction of the indictment and waived her rightto appeal. Pursuant to the plea agreement, defendant was thereafter sentenced as a second felonyoffender to two consecutive prison terms of four years, with three years of postreleasesupervision. Defendant now appeals.

We affirm. Defendant's challenge to the factual sufficiency of her plea allocution isforeclosed by her valid waiver of the right to appeal, as well as her failure to move to withdrawthe plea or vacate the judgment of conviction (see People v Rose, 41 AD3d 1033, 1034 [2007], lv denied9 NY3d 926 [2007]; People vMissimer, 32 AD3d 1114, 1115 [2006], lv denied 7 NY3d 927 [2006]). In anyevent, noting that defendant need not personally recite the facts underlying her crimes, our reviewof the plea allocution satisfies us that the elements of the crimes were established by defendant'sresponses to County Court's questioning (see People v Bagley, 34 AD3d 992, 993 [2006], lv denied 8NY3d 878 [2007]; People v Smith, 21 AD3d [*2]1186,1187 [2005], lv denied 6 NY3d 818 [2006]).

In light of defendant's valid waiver of the right to appeal, she is also precluded from arguingthat her sentence was harsh and excessive (see People v Pickens, 45 AD3d 1187, 1188 [2007], lvdenied 10 NY3d 769 [2008]; Peoplev Crudup, 45 AD3d 1111, 1112 [2007]).

Cardona, P.J., Peters, Carpinello and Kane, JJ., concur. Ordered that the judgment isaffirmed.