| People v Dobrouch |
| 2009 NY Slip Op 01045 [59 AD3d 781] |
| February 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnDobrouch, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered September 14, 2006, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the second degree.
Defendant waived indictment and, pursuant to a negotiated agreement, pleaded guilty to asuperior court information charging him with attempted robbery in the second degree, waived hisright to appeal and thereafter was sentenced as a second felony offender to the agreed-uponprison term of three years, followed by five years of postrelease supervision. Defendant nowappeals, contending that he was denied the effective assistance of counsel and that his plea wasnot voluntary.
We affirm. While defendant's waiver of his right to appeal does not bar his ineffectiveassistance of counsel claim insofar as it relates to the voluntariness of his plea, his failure tomove to withdraw his plea or vacate the judgment of conviction renders such claim unpreservedfor our review (see People v Jeske,55 AD3d 1057, 1058 [2008], lv denied 11 NY3d 898 [2008]; People v Morelli, 46 AD3d 1215,1217 [2007], lv denied 10 NY3d 814 [2008]). Were we to reach this issue, we wouldfind that the majority of counsel's claimed deficiencies, including her alleged failure to requestcertain pretrial hearings, involve matters outside the record and more properly are the subject ofa CPL article 440 motion (see People v Swartz, 23 [*2]AD3d 917, 918 [2005], lv denied 6 NY3d 818 [2006]).Defendant's remaining assertions in this regard are belied by the plea colloquy, wherein he statedthat he understood the rights he was relinquishing, was satisfied with counsel's representationand had adequate opportunity to confer with her (see People v Clark, 52 AD3d 951, 952 [2008], lv denied11 NY3d 831 [2008]). Under such circumstances, we cannot say that defendant was deniedmeaningful representation (see id.).
As for defendant's challenge to the voluntariness of his plea, although not encompassed byhis waiver of appeal, this issue similarly is not preserved for our review in light of defendant'sfailure to move to withdraw his plea or vacate the judgment of conviction (see People vJeske, 55 AD3d at 1058; People vLopez, 52 AD3d 852, 852-853 [2008]). The narrow exception to the preservationrequirement is not triggered here inasmuch as defendant did not make any statements during hisallocution that were inconsistent with his guilt or otherwise called into question the voluntarinessof his plea (see People v Jeske, 55 AD3d at 1058; People v Robles, 53 AD3d 686, 687 [2008], lv denied 11NY3d 794 [2008]). In any event, our review of the colloquy persuades us that defendant's pleawas knowing, intelligent and voluntary. Defendant's remaining arguments, to the extent notspecifically addressed, have been examined and found to be lacking in merit.
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.