| People v Dixon |
| 2009 NY Slip Op 04135 [62 AD3d 1214] |
| May 28, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RonneyDixon, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered May 2, 2008, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to the sole count of the indictment charging him with criminalpossession of a controlled substance in the third degree, received the agreed-upon sentence offive years in prison followed by two years of postrelease supervision, and executed a writtenwaiver of his right to appeal. Defendant now appeals contending, among other things, that hiswaiver and resulting plea were involuntary.
We affirm. Contrary to defendant's assertion, the record reflects that his waiver of the rightto appeal was knowing, intelligent and voluntary. County Court's explanation of the significanceof the appeal waiver to defendant, along with defendant's detailed written waiver executed inopen court, adequately described the nature and scope of the rights waived. In addition, CountyCourt confirmed that defendant had discussed the matter with counsel and ensured that suchwaiver had not been coerced (seePeople v Morrishaw, 56 AD3d 895, 896-897 [2008], lv denied 12 NY3d 761[2009]; People v Jeske, 55 AD3d1057, 1057-1058 [2008], lv denied 11 NY3d 898 [2008]). Accordingly, we discernno basis upon which to invalidate [*2]defendant's valid waiver.
To the extent that defendant separately challenges the voluntariness of his plea, the issuesurvives his waiver of the right to appeal; his failure to move to withdraw his plea or vacate hisjudgment of conviction, however, renders this issue unpreserved for our review (see People v Nunez, 56 AD3d897, 898 [2008], lv denied 11 NY3d 928 [2009]; People v Vallance, 49 AD3d 917, 917 [2008], lv denied 10NY3d 845 [2008]). Further, "[t]he narrow exception to the preservation requirement is nottriggered here inasmuch as defendant did not make any statements during his allocution thatwere inconsistent with his guilt or otherwise called into question the voluntariness of his plea"(People v Dobrouch, 59 AD3d781, 781 [2009]).
We reach a similar conclusion regarding defendant's ineffective assistance of counselclaim—namely, that to the extent that it survives his waiver of the right to appeal,defendant's failure to move to withdraw his plea or vacate the judgment of conviction rendersthis claim unpreserved for our review (see id. at 781; People v Crudup, 45 AD3d 1111, 1111 [2007]). Moreover, in viewof defendant's statements that he had sufficient time to confer with counsel and was satisfiedwith counsel's representation, and based upon our review of the record as a whole, reversal in theinterest of justice is unwarranted here.
Finally, defendant's assertion that the negotiated sentence is harsh and excessive is precludedby his valid waiver of the right to appeal (see People v Crudup, 45 AD3d at 1112).
Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.