| People v Board |
| 2010 NY Slip Op 06108 [75 AD3d 833] |
| July 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joshua Board,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered July 11, 2007, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
Defendant pleaded guilty to the reduced charge of attempted criminal possession of aweapon in the second degree and waived his right to appeal. Under the terms of the pleaagreement, defendant agreed to cooperate with the Albany County District Attorney by truthfullytestifying at a trial on an unrelated matter and County Court agreed that it would impose asentence not to exceed five years in prison to be followed by three years of postreleasesupervision. When defendant appeared for sentencing, the People and defense counsel bothindicated that defendant had failed to cooperate as promised and County Court thereaftersentenced defendant to a term of six years in prison to be followed by three years of postreleasesupervision.
We affirm. Defendant's failure to move to withdraw his plea or vacate the judgment ofconviction renders his challenges to the voluntariness of his plea and the factual sufficiency ofthe plea allocution unpreserved for our review (see People v Zakrzewski, 69 AD3d 1055, 1055 [2010]; People v Smith, 56 AD3d 894,894-895 [2008], lv denied 12 NY3d 788 [2009]). [*2]Moreover, the narrow exception to the preservation requirement isinapplicable here as defendant did not make any statements during his allocution that wereinconsistent with his guilt (see People vDixon, 62 AD3d 1214, 1214 [2009], lv denied 13 NY3d 743 [2009]). In anyevent, our review of the record reveals that County Court fully apprised defendant of theramifications of his guilty plea and that defendant had discussed the plea with counsel and fullyunderstood its terms, including that the plea bargain was conditioned upon his providing truthfultestimony in the unrelated matter. Further, contrary to defendant's contention, he was notrequired to recite the elements of his crime or engage in a factual exposition, as his unequivocalaffirmative responses to County Court's questions were sufficient to establish the elements of thecrime charged (see People vSingletary, 51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741 [2008]).
To the extent that defendant contends that he was pressured by counsel into pleading guilty,this claim is unpreserved as well (seePeople v Denson, 40 AD3d 1266, 1266 [2007]). Even if preserved, defendant'sallegation involves matters outside the record (see People v Elliott, 62 AD3d 1098, 1099 [2009], lvdenied 12 NY3d 924 [2009]). Moreover, during his plea colloquy, defendant specificallystated that he had not been coerced and was satisfied with counsel's representation. Finally, inlight of defendant's valid waiver of the right to appeal, his argument that his sentence was harshand excessive is precluded (see Peoplev Campbell, 67 AD3d 1125, 1126 [2009], lv denied 14 NY3d 770 [2010]).
Lahtinen, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.