People v Martin

2008 NY Slip Op 05390

Decided on June 12, 2008

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 12, 2008
100074



Calendar Date: May 14, 2008
Before: Cardona, P.J., Peters, Carpinello, Lahtinen and Malone Jr., JJ.


Paul A. Clyne, Albany, for appellant.
Gerald F. Mollen, District Attorney, Binghamton
(Robin S. Engler of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered September 16, 2005, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant was charged with five counts of criminal possession of a controlled substance in the third degree. He ultimately pleaded guilty to one count of criminal possession of a controlled substance in the fourth degree and was sentenced as a second felony offender to the agreed-upon term of three years in prison followed by two years of postrelease supervision. Defendant now appeals.

Preliminarily, to the extent that defendant suggests that his plea was coerced, we need note only that defendant failed to move to withdraw his plea or vacate the judgment of conviction and, hence, has not preserved this issue for our review (see People v Brown, 49 AD3d 1028 [2008]; People v Edwards, 43 AD3d 1227, 1228 [2007], lv denied 9 NY3d 1005 [2007]). The narrow exception to the preservation requirement has not been triggered here as defendant did not make any statements during the plea allocution that cast doubt upon either his guilt or the voluntariness of his plea or otherwise tended to negate a material element of the crime (see People v Hall, 41 AD3d 1090, 1091 [2007], lv denied 9 NY3d 876 [2007]; People v Williams, 25 AD3d 927, 929 [2006], lv denied 6 NY3d 840 [2006]). In any event, were we to reach this issue, we would find it to be lacking in merit.[*2]

Turning to the issue of sentencing, although defendant indeed preserved his challenge to the severity of the sentence imposed, we find it to be unpersuasive. Defendant was sentenced in accordance with the plea agreement and, in light of his criminal history, we perceive no abuse of discretion nor are we able to discern the existence of any extraordinary circumstances that would warrant a reduction of the sentence in the interest of justice (see People v Edwards, 43 AD3d at 1228; People v Hilliard, 39 AD3d 1021, 1022 [2007]).

Cardona, P.J., Peters, Carpinello, Lahtinen and Malone Jr., JJ., concur.

ORDERED that the judgment is affirmed.