| People v Holmes |
| 2010 NY Slip Op 06109 [75 AD3d 834] |
| July 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Arthur G.Holmes, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered November 10, 2008, convicting defendant upon his plea of guilty of the crime ofreckless endangerment in the first degree.
Defendant waived his right to appeal and pleaded guilty to a superior court informationcharging him with one count of reckless endangerment in the first degree. The charge stemmedfrom two incidents where defendant participated in consensual, but unprotected, anal sex withoutadvising the other male participant of the fact that he is infected with the humanimmunodeficiency virus. In accordance with the plea agreement, County Court sentenced him asa second felony offender to a prison term of 3 to 6 years. Defendant appeals and we affirm.
Defendant argues that the facts of this case, as set out during the plea colloquy, do notconstitute the crime of first-degree reckless endangerment. This is, however, a challenge to thefactual sufficiency of the plea, which is both precluded by his appeal waiver and unpreserved forour review inasmuch as he failed to move to withdraw his plea or vacate the judgment ofconviction (see People v Ashley, 71AD3d 1286, 1287 [2010]; People v Florance, 58 AD3d 887, 887 [2009]). Nor do weview this as that rare case that falls within the narrow exception to the preservation rulearticulated in People v Lopez (71 NY2d 662, 666 [1988]). In any event, as defendantmanifestly understood the charge and made a knowing, voluntary and intelligent decision toplead guilty, he cannot now be heard to question whether the facts admitted constitute [*2]the crime to which he pleaded guilty (see People v Goldstein, 12 NY3d295, 301 [2009]; People v Francis, 38 NY2d 150, 154-155 [1975]; People vDewer, 243 AD2d 984, 985 [1997], lv denied 91 NY2d 925 [1998]).
Defendant's remaining claim of ineffective assistance, to the extent it implicates thevoluntariness of his plea and thereby survives his waiver of appeal, is unpreserved due to hisfailure to move to withdraw the guilty plea or vacate the judgment of conviction (see People v Garland, 69 AD3d1122, 1123 [2010], lv denied 14 NY3d 887 [2010]; People v Campbell, 67 AD3d1125, 1125 [2009], lv denied 14 NY3d 770 [2010]). Regardless, the record revealsthat defendant received meaningful representation (see People v Scitz, 67 AD3d 1251, 1252 [2009]).
Lahtinen, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.