| People v Dash |
| 2010 NY Slip Op 05189 [74 AD3d 1859] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Randy L.Dash, Appellant. |
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Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered October27, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted burglary inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]),defendant contends that his plea was coerced. Although that contention survives defendant'svalid waiver of the right to appeal, defendant did not move to withdraw the plea or to vacate thejudgment of conviction and thus failed to preserve his contention for our review (see People v Dozier, 59 AD3d987 [2009], lv denied 12 NY3d 815 [2009]; People v Allport, 59 AD3d 1001 [2009], lv denied 12NY3d 850 [2009]). The further contention of defendant that County Court erred in accepting hisAlford plea "survives his waiver of the right to appeal to the extent that his contentionimplicates the voluntariness of the plea" (People v Dille, 21 AD3d 1298, 1298 [2005], lv denied 5NY3d 882 [2005]; see People vEbert, 15 AD3d 781 [2005]). Defendant, however, also failed to preserve thatcontention for our review (see People vHinkle, 56 AD3d 1210 [2008]), and this case does not fall within the exception to thepreservation requirement (see Dille, 21 AD3d 1298 [2005]). In any event, defendant'scontention lacks merit. When defendant denied entering or attempting to enter the dwelling orhaving an intent to commit a crime therein, the court " 'fulfilled its duty to conduct furtherinquiry to ensure that the plea was entered knowingly, voluntarily and intelligently' " (People v McGrail, 42 AD3d 962,963 [2007], lv denied 9 NY3d 878 [2007]). "Here, the record establishes that defendant'sAlford plea was 'the product of a voluntary and rational choice, and the record. . . contains strong evidence of actual guilt' " (People v Smith, 26 AD3d 746, 747 [2006], lv denied 7NY3d 763 [2006], quoting Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]).Present—Martoche, J.P., Fahey, Carni, Sconiers and Green, JJ.