| People v Thompson |
| 2010 NY Slip Op 01023 [70 AD3d 1123] |
| February 11, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DemetriusThompson, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered November 25, 2008, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to the crime of criminal sale of a controlled substance in the thirddegree. Pursuant to the plea agreement, defendant was sentenced to a term of imprisonment offive years, to be followed by three years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's challenge to the voluntariness of his plea is unpreserved for ourreview in light of his failure to move to withdraw his plea or vacate the judgment of conviction(see People v Thompkins, 58 AD3d 1068, 1068 [2009], lv denied 12 NY3d 822[2009]; People v Creech, 56 AD3d899, 900 [2008], lv denied 12 NY3d 815 [2009]). Further, the narrow exception tothe preservation rule is inapplicable here as defendant did not make any statements during theplea allocution that either cast doubt on his guilt or otherwise tended to negate an element of thecrime (see People v Swarts, 64AD3d 801, 802 [2009]; People vGrant, 60 AD3d 1202, 1202-1203 [2009]). In addition, defendant's plea was notrendered ineffective by his unsworn allocution because he was not required to recite the factsunderlying his crime (see People vSmith, 57 AD3d 1237, 1237 [2008]) and CPL 220.50 does not require a plea to be made[*2]under oath. With regard to defendant's contention that hissentence was harsh and excessive, our review of the record reveals that County Court imposedthe agreed-upon sentence and we discern no abuse of discretion or the existence of extraordinarycircumstances warranting a reduction of his sentence (see People v Parsons, 65 AD3d 716 [2009], lv denied 13NY3d 838 [2009]; People v Smith, 57 AD3d at 1238).
Peters, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.