| People v Singh |
| 2010 NY Slip Op 04468 [73 AD3d 1384] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SasenarineSingh, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered January 22, 2008, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the first degree.
Defendant pleaded guilty to a reduced charge of attempted burglary in the first degree insatisfaction of a nine-count indictment and waived his right to appeal. Pursuant to the negotiatedplea agreement, County Court sentenced defendant to four years in prison followed by 2½years of postrelease supervision. Defendant now appeals, claiming that his plea was involuntary,his sentence was harsh and excessive and he received ineffective assistance of counsel.
Defendant's challenge to the voluntariness of his plea survives the waiver of his right toappeal but is unpreserved given his failure to move to withdraw the plea or vacate the judgmentof conviction (see People v Scitz,67 AD3d 1251, 1251 [2009]). Furthermore, as defendant did not make any statementsduring the plea allocution that tended to negate a material element of the crime or cast doubt onhis guilt, the narrow exception to the preservation rule does not apply (see People v Cintron, 62 AD3d1157, 1158 [2009], lv denied 13 NY3d 742 [2009]; People v Dobrouch, 59 AD3d781, 781-782 [2009], lv denied 12 NY3d 853 [2009]). In any event, defendant'sassertions that he was coerced into entering the plea or confused by its terms are belied by therecord, which reveals that defendant entered a voluntary, knowing and intelligent [*2]plea.
To the extent that defendant's ineffective assistance of counsel claim impacts thevoluntariness of his plea, it too survives the waiver of appeal (see People v Anderson, 63 AD3d1191, 1193 [2009], lv denied 13 NY3d 794 [2009]). However, it is similarlyunpreserved as a result of defendant's failure to move to withdraw the plea or vacate thejudgment of conviction (see id.). Reviewing the claim, we find it is unavailing.Defendant received a favorable plea and acknowledged during the colloquy that he was satisfiedwith his attorney (see People vGibson, 21 AD3d 577, 578 [2005]). Finally, given the existence of a valid appealwaiver, we are foreclosed from reviewing defendant's argument that the agreed-upon sentence isharsh and excessive (see People vJeske, 55 AD3d 1057, 1058-1059 [2008], lv denied 11 NY3d 898 [2008]).
Mercure, J.P., Peters, Rose and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.