| People v Fiske |
| 2009 NY Slip Op 08892 [68 AD3d 1149] |
| December 3, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Scott W.Fiske, Appellant. |
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Lahtinen, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered October 10, 2007, convicting defendant upon his plea of guilty of the crimes ofmanslaughter in the second degree and criminal sale of a controlled substance in the third degree.
Defendant was indicted on a variety of charges arising out of the stabbing death of anindividual during a melee. A second indictment was then handed up which charged defendantwith selling cocaine on three occasions while awaiting trial on the first indictment. In fullsatisfaction of both indictments, defendant pleaded guilty to manslaughter in the second degreeand criminal sale of a controlled substance in the third degree. County Court sentenceddefendant, as set out in the plea agreement, to an aggregate prison term of 5 to 15 years andpostrelease supervision of two years. Defendant now appeals and we affirm.
Defendant disputes the factual sufficiency of his plea allocution, but that issue isunpreserved due to his failure to move to withdraw his plea or vacate the judgment of conviction(see People v Lopez, 71 NY2d 662, 665 [1988]; People v Davis-Ivery, 59 AD3d 853, 854 [2009]). A narrowexception to the preservation requirement does exist where statements made during a pleacolloquy cast significant doubt on a defendant's guilt or the voluntariness of his or her plea(see People v Lopez, 71 NY2d at 666; People v Fauntleroy, 57 AD3d 1167, 1168 [2008]). Whiledefendant here stated that he did not remember whether or not he had stabbed the [*2]victim, he admitted that he attempted to grab the knife from anothercombatant and the victim was stabbed in the ensuing struggle, and his failure to expressly admitto stabbing the victim did not cast any doubt on his guilt such as to bring this case within theexception to the preservation requirement (see People v Goldstein, 12 NY3d 295, 300-301 [2009]; see e.g. People v DeCapua, 37 AD3d1189, 1189-1190 [2007], lv denied 8 NY3d 983 [2007]).
Defendant's failure to move to withdraw his plea or vacate the judgment of convictionsimilarly renders his claim of ineffective assistance of counsel unpreserved to the extent that itrelates to the voluntary nature of his plea (see People v Maldonado, 61 AD3d 1220 [2009]; People vThompkins, 58 AD3d 1068, 1068 [2009], lv denied 12 NY3d 822 [2009]).Moreover, a number of defendant's claims involve matters outside of the record that are properlyaddressed in a CPL article 440 motion (see People v Maldonado, 61 AD3d at 1220).Regardless, with regard to those matters on the record, defendant entered an advantageous pleawhich significantly reduced his sentencing exposure and unequivocally expressed in his pleacolloquy his understanding of the terms of the plea agreement and a potential justificationdefense that he was giving up by pleading guilty, as well as his satisfaction with counsel, and wecannot say that counsel provided ineffective assistance (see People v Ford, 86 NY2d397, 404 [1995]; People vSingletary, 51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741 [2008]).
Defendant's remaining challenge to his sentence as harsh and excessive has been reviewedand found to be wanting in merit.
Peters, J.P., Spain, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.