| People v Campbell |
| 2009 NY Slip Op 06743 [66 AD3d 1059] |
| October 1, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JodieCampbell, Also Known as Jeezy, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered July 8, 2008, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a controlled substance in the third degree and criminal possession of a controlledsubstance in the fifth degree.
In March 2008, defendant was charged in an indictment with various counts of criminal saleand possession of a controlled substance arising out of two sales of cocaine in the presence of anundercover officer. Subsequently, defendant was charged in an indictment with multiple countsof criminal possession of a controlled substance after cocaine was found in his pocket whenpolice executed a no-knock warrant on the apartment of an acquaintance. Defendant ultimatelypleaded guilty to one count of criminal sale of a controlled substance in the third degree insatisfaction of the first indictment and one count of criminal possession of a controlled substancein the fifth degree in satisfaction of the second indictment. He was sentenced, as a second felonyoffender, to the bargained for prison term of four years and three years of postrelease supervisionon the first charge and 2½ years and two years of postrelease supervision on the secondcharge, the sentences to run concurrently. Defendant appeals and we affirm.
Initially, defendant's challenge to the factual sufficiency of his plea allocution regarding[*2]the offense charged in the second indictment is unpreservedfor our review inasmuch as he did not move to withdraw his plea or vacate the judgment ofconviction (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Davis-Ivery, 59 AD3d853, 854 [2009]; People vJohnson, 54 AD3d 1133, 1133 [2008]). We also find that the narrow exception to thepreservation rule does not apply because defendant made no statements during the allocution thatserved to cast doubt upon his guilt or the voluntariness of his plea (see People vDavis-Ivery, 59 AD3d at 854; People v Johnson, 54 AD3d at 1133; People v Stokely, 49 AD3d 966,967 [2008]). In any event, contrary to defendant's contention, it was not necessary that he reciteevery element of the crime or engage in a factual recitation, inasmuch as his affirmativeresponses to County Court's questions established the elements of the crime charged (see People v Kaszubinski, 55 AD3d1133, 1136 [2008], lv denied 12 NY3d 855 [2009]; People v Johnson, 54AD3d at 1133-1134; People v Stokely, 49 AD3d at 967).
Defendant's claim that County Court erred because it did not advise him at the time of hisguilty plea that he would be sentenced as a second felony offender is similarly unpreserved bydefendant's failure to move to withdraw his plea or vacate the judgment of conviction (seePeople v Mayers, 74 NY2d 931, 931-932 [1989]; People v Kopy, 54 AD3d 441, 441 [2008]; People v Granan, 48 AD3d 975,975-976 [2008], lv denied 10 NY3d 959 [2008]).
Mercure, J.P., Kane, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.