| People v Phelan |
| 2010 NY Slip Op 07083 [77 AD3d 987] |
| October 7, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KennethPhelan, Also Known as Christopher Duffner, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered February 13, 2009, convicting defendant upon his plea of guilty of the crime of forgeryin the second degree.
Defendant pleaded guilty to forgery in the second degree, waived his right to appeal and wassentenced to the agreed-upon term of 2½ to 5 years in prison. Defendant now appealscontending, among other things, that he was denied the effective assistance of counsel due tocounsel's failure to file a suppression motion.
Preliminarily, we reject any assertion that defendant's waiver of the right to appeal wasinvalid. County Court fully and separately explained the nature and ramifications of the waiver,and defendant expressed his understanding of the right he was waiving and indicated that he hadsufficient time to confer with counsel. Under such circumstances, we conclude that defendant'swaiver was valid (see People vCampbell, 67 AD3d 1125, 1125 [2009], lv denied 14 NY3d 770 [2010]; People v Gomez, 50 AD3d 1391,1391 [2008], lv denied 11 NY3d 736 [2008]).
Although defendant's challenge to the voluntariness of his plea survives the foregoing [*2]waiver, defendant's failure to move to withdraw his plea or vacatethe judgment of conviction renders this issue unpreserved for our review (see People v Empey, 73 AD3d1387, 1388 [2010]; People vSingh, 73 AD3d 1384, 1384-1385 [2010]). Further, inasmuch as defendant did not makeany statements during his allocution that negated an element of the crime charged or otherwisecalled into question his guilt, the narrow exception to the preservation requirement was nottriggered here (see People v Lopez,74 AD3d 1498, 1499 [2010]; People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied14 NY3d 893 [2010]).
Turning to defendant's ineffective assistance of counsel claim, while that claim also surviveshis waiver to the extent that it relates to the voluntariness of his plea, counsel's alleged failure tofile a suppression motion does not implicate the voluntariness of defendant's plea (see People v Gentry, 73 AD3d1383, 1384 [2010]). In any event, defendant's failure to move to withdraw his plea or vacatethe judgment of conviction likewise renders this issue unpreserved for our review (see id.at 1384; People v Jenks, 69 AD3d1120, 1121 [2010], lv denied 14 NY3d 841 [2010]).
Finally, defendant's valid waiver of the right to appeal precludes review of his claim that thesentence imposed was harsh and excessive (see People v Morales, 68 AD3d 1356, 1357 [2009], lvdenied 14 NY3d 803 [2010]; People v Gomez, 50 AD3d at 1391). Accordingly,County Court's judgment is affirmed.
Rose, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.