| People v Davis |
| 2010 NY Slip Op 04884 [74 AD3d 1490] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShamelDavis, Also Known as Cruddy, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered December 16, 2004, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the second degree.
A 13-count indictment was returned against defendant which included two counts of murderin the second degree. In satisfaction of all counts of the indictment, defendant pleaded guilty toone count of criminal possession of a weapon in the second degree and waived his right toappeal in return for a negotiated sentence of 14 years in prison followed by five years ofpostrelease supervision. He now appeals claiming that his plea was involuntary, he receivedineffective assistance of counsel and his sentence was harsh and excessive.
While defendant's waiver of appeal does not foreclose his challenge to the voluntariness ofhis plea or his related claim of ineffective assistance of counsel (see People v Walley, 63 AD3d1284, 1285 [2009]), these arguments are unpreserved for our review since he did not moveto withdraw his plea or vacate his judgment of conviction (see People v Scitz, 67 AD3d 1251, 1251-1252 [2009]). Moreover,defendant made no statements during the allocution that cast any doubt on his guilt or thevoluntariness of his plea which would provide an exception to the [*2]preservation rule (see People v Brennan, 62 AD3d 1167, 1168 [2009], lvdenied 13 NY3d 794 [2009]). Nevertheless, the record provides no support for either claim.Defendant's last argument that the bargained for sentence was harsh and excessive is precludedby his valid appeal waiver (see People vBorom, 55 AD3d 1041, 1042 [2008]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.