| People v Campbell |
| 2009 NY Slip Op 08086 [67 AD3d 1125] |
| November 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DaneneCampbell, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered December 5, 2007, convicting defendant upon her plea of guilty of the crime of forgeryin the second degree.
Defendant pleaded guilty to one count of forgery in the second degree in satisfaction of a19-count indictment and waived her right to appeal. County Court sentenced her, as a secondfelony offender, to the agreed-upon prison term of 3½ to 7 years. Defendant now appeals.
Initially, we reject defendant's challenge to the validity of her appeal waiver. During the pleacolloquy, County Court explained the appeal waiver to defendant, who stated on the record thatshe understood it and that she was waiving her right to appeal as part of the plea agreement, andhad spoken to counsel about it. Moreover, in open court she executed a written waiver of appealwhich explained the appellate process, and she indicated both that she had discussed the issuewith counsel and was freely and voluntarily waiving her right to appeal. Under thesecircumstances, defendant's appeal waiver is valid (see People v Gilmour, 61 AD3d 1122, 1123 [2009], lvdenied 12 NY3d 925 [2009]; People v Mosher, 45 AD3d 970, 970 [2007], lv denied 10NY3d 814 [2008]).
Defendant also asserts that her plea was not knowingly and voluntarily entered. While [*2]this argument survives her appeal waiver, it is unpreserved forreview due to her failure to move to withdraw her plea or vacate the judgment of conviction (see People v Dixon, 62 AD3d1214, 1214 [2009]; People vGrant, 60 AD3d 1202, 1202 [2009]). Nor does the narrow exception to the preservationrule apply, as defendant made no statements during the plea allocution that called into questionher guilt or the voluntariness of her plea (see People v Dixon, 62 AD3d at 1214).
Similarly, while defendant's appeal waiver does not bar her ineffective assistance of counselargument to the extent that it implicates the voluntariness of her plea, the lack of a motion towithdraw the plea or vacate the judgment of conviction leaves it unpreserved for review (see People v Dobrouch, 59 AD3d781, 781 [2009], lv denied 12 NY3d 853 [2009]). In any event, defendant statedduring the plea colloquy that she understood the rights she was giving up, was satisfied withcounsel's representation and had an adequate opportunity to confer with him, and we are satisfiedthat she received meaningful representation (see People v Dixon, 62 AD3d at1214-1215; People v Cintron, 62AD3d 1157, 1158 [2009]).
Lastly, defendant's argument that the sentence was harsh and excessive is precluded by hervalid appeal waiver (see People vLopez, 6 NY3d 248, 255-256 [2006]; People v Platero, 63 AD3d 1446, 1446 [2009]).
Peters, J.P., Spain, Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.