| People v MacDonald |
| 2010 NY Slip Op 07085 [77 AD3d 989] |
| October 7, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David R.MacDonald, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered July 10, 2009, convicting defendant upon his plea of guilty of the crime of rape in thefirst degree.
In satisfaction of an eight-count indictment, defendant pleaded guilty to rape in the firstdegree, waived his right to appeal and was sentenced as a second felony offender to theagreed-upon term of 12 years in prison followed by 20 years of postrelease supervision.Defendant now appeals, arguing that his plea was not voluntary and that he was denied theeffective assistance of counsel.
Defendant's challenge to the voluntariness of his plea survives the waiver of his right toappeal, but is unpreserved for our review since he did not move to withdraw the plea or vacatethe judgment of conviction (see Peoplev Dobrouch, 59 AD3d 781, 781 [2009], lv denied 12 NY3d 853 [2009]).Moreover, contrary to defendant's assertion, the narrow exception to the preservation rule doesnot apply (see People v Lopez, 71 NY2d 662, 666-667 [1988]). To be sure, defendantinitially asserted that he did not employ physical force during his encounter with the victim;however, County Court satisfied its duty to inquire further and defendant acknowledged that thevictim submitted to sexual intercourse based on his threat to cause her physical injury(see Penal Law § 130.00 [8]; § 130.35 [1]; People v Swarts, 64 AD3d 801,802[*2][2009]). Accordingly, were we to review the merits, wewould find that the elements of the crime were adequately established and that defendantknowingly and voluntarily entered the plea.
To the extent that defendant's ineffective assistance of counsel claim impacts upon thevoluntariness of his plea, it is not foreclosed by his valid appeal waiver (see People v Leigh, 71 AD3d1288, 1288 [2010], lv denied 15 NY3d 775 [2010]). Such a claim is nonethelesssimilarly unpreserved given defendant's failure to move to withdraw the plea or vacate thejudgment of conviction (see People vVolfson, 69 AD3d 1123, 1124 [2010]). In that regard, defendant was afforded theopportunity to withdraw his plea at sentencing, and he repeatedly informed County Court that hedid not desire to do so. In any event, defendant's contention is belied by the plea colloquy, atwhich time he stated that he understood the rights he was relinquishing, was entering the pleafreely and voluntarily, and that he was satisfied with counsel's services (see People v Clark, 52 AD3d 951,952 [2008], lv denied 11 NY3d 831 [2008]).
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.