| People v Jeske |
| 2008 NY Slip Op 08037 [55 AD3d 1057] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael F. Jeske,Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Washington County (McKeighan, J.),rendered June 8, 2007, convicting defendant upon his plea of guilty of the crime of criminal sexual act inthe second degree.
In accordance with a negotiated plea agreement, defendant pleaded guilty to one count of criminalsexual act in the second degree,[FN*] waived his right to appeal and was sentenced to 1 to 3 years in prison. He appeals, and we affirm.
Despite defendant's protestations to the contrary, we find that he knowingly, voluntarily andintelligently waived his right to appeal. The plea minutes reflect that County Court explained thesignificance of the appeal waiver to defendant and confirmed that he had discussed the matter withcounsel. Defendant also executed a detailed written appeal waiver in open court, which explained theappellate process, reflected that counsel had fully advised him of the consequences of the waiver andstated that he was waiving his right to appeal voluntarily (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Lewis, 48 AD3d 880, 881[2008]; People v [*2]Fludd, 33 AD3d 1124, 1125 [2006], lv denied 9NY3d 843 [2007]).
Defendant's challenge to the voluntariness of his guilty plea, although not encompassed by hiswaiver of appeal, is not preserved for our review given his failure to move to withdraw his guilty plea orvacate the judgment of conviction (see Peoplev Vallance, 49 AD3d 917, 917 [2008], lv denied 10 NY3d 845 [2008]; People v Crudup, 45 AD3d 1111,1111 [2007]). Furthermore, the narrow exception to the preservation rule is inapplicable inasmuch asdefendant did not make any statements during the plea allocution that cast significant doubt upon hisguilt or the voluntariness of his plea (seePeople v Corbett, 52 AD3d 1023, 1024 [2008]; People v McKeney, 45 AD3d 974, 975 [2007]). Rather, upon ourreview of the allocution, we are satisfied that defendant's plea was knowing, voluntary and intelligent(see People v Perry, 50 AD3d1244, 1245 [2008], lv denied 10 NY2d 963 [2008]; People v White, 47 AD3d 1062, 1063 [2008], lv denied 10NY3d 818 [2008]; People v Wagoner,30 AD3d 629, 629 [2006]).
Defendant's next contention, that he was denied the effective assistance of counsel, "is precludedby his valid appeal waiver except insofar as the alleged ineffectiveness could be construed to haveimpacted upon the voluntariness of his plea and, to that extent, the absence of a motion to withdraw theplea or vacate the judgment of conviction renders the matter unpreserved" (People v Crudup,45 AD3d at 1111). In any event, we are unpersuaded by defendant's argument that counsel's failure tomove to withdraw his plea on the basis of his claims of innocence contained in the presentenceinvestigation report rendered counsel's representation less than meaningful. Defendant failed to protesthis innocence at sentencing when afforded the opportunity to address County Court and, given hisstatements that he was satisfied with counsel's services and the advantageous plea agreement negotiatedby counsel that greatly reduced his sentencing exposure, we find that defendant was providedmeaningful representation (see People vWhite, 52 AD3d 950, 951 [2008], lv denied 11 NY3d 742 [2008]; People vWhite, 47 AD3d at 1064).
Finally, defendant's claim that his sentence is harsh and excessive is foreclosed by his valid waiverof appeal (see People v Nickell, 49AD3d 1024, 1025 [2008]; People vBunce, 45 AD3d 982, 985 [2007], lv denied 10 NY3d 809 [2008]).
Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: This crime was previously known assodomy in the second degree (see L 2003, ch 264, § 19).