| People v McKenzie |
| 2009 NY Slip Op 06740 [66 AD3d 1056] |
| October 1, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TroyMcKenzie, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered February 22, 2007, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree.
Defendant waived indictment and pleaded guilty to a superior court information charginghim with criminal sale of a controlled substance in the third degree. Pursuant to the pleaagreement, defendant waived his right to appeal and was sentenced as a second felony offenderto a term of imprisonment of 4½ years, to be followed by two years of postreleasesupervision. Defendant now appeals and we affirm.
Defendant's contention that his waiver of the right to appeal was invalid, due to CountyCourt's failure during allocution to distinguish the right to appeal from the rights forfeited by hisguilty plea, is unpersuasive; defendant, through his counseled written waiver, acknowledged hisright to appeal, that he had discussed the waiver of that right and its consequences with counsel,and that he was waiving the right voluntarily (see People v Ramirez, 42 AD3d 671, 671-672 [2007]; see also People v Ramos, 7 NY3d737, 738 [2006]; People vGilmour, 61 AD3d 1122, 1123 [2009], lv denied 12 NY3d 925 [2009]; People v Robles, 53 AD3d 686,687 [2008], lv denied 11 NY3d 794 [2008]; People v Getter, 52 AD3d 1117, 1118 [2008]; People vCross, 42 [*2]AD3d 586, 587 [2007], lv denied 9NY3d 960 [2007]). Defendant also contends that his plea was not entered voluntarily. While thisissue survives his waiver of the right to appeal, it is not preserved for our review insofar asdefendant failed to move to withdraw his plea or vacate his judgment of conviction (see People v Dixon, 62 AD3d1214, 1214 [2009]; People vNunez, 56 AD3d 897, 898 [2008], lv denied 11 NY3d 928 [2009]). Moreover,"the narrow exception to the preservation rule is inapplicable inasmuch as defendant did notmake any statements during his plea allocution which negated an essential element of the crimeor otherwise cast significant doubt on his guilt" (People v Wright, 40 AD3d 1314, 1314 [2007]; see People v Cintron, 62 AD3d1157, 1158 [2009]).
Cardona, P.J., Peters, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.