| People v Caldwell |
| 2011 NY Slip Op 00292 [80 AD3d 998] |
| January 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RobertCaldwell, Appellant. |
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Garry, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered September 26, 2008, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree.
Following a failed attempt to bring a quantity of heroin to his brother, a prison inmate,defendant pleaded guilty to attempted promoting prison contraband in the first degree, waived hisright to appeal and was sentenced as a second felony offender to the agreed-upon prison term of1½ to 3 years. Defendant now appeals contending, among other things, that he wasimproperly sentenced as a second felony offender.
Preliminarily, defendant's challenge to the factual sufficiency of his plea is precluded by hisvalid waiver of the right to appeal (seePeople v Swindell, 72 AD3d 1340, 1341 [2010], lv denied 15 NY3d 778 [2010])and, further, is unpreserved for our review in light of defendant's failure to move to withdraw hisplea or vacate the judgment of conviction (see People v Holmes, 75 AD3d 834, 834-835 [2010], lvdenied 15 NY3d 921 [2010]; Peoplev Empey, 73 AD3d 1387, 1388 [2010], lv denied 15 NY3d 804 [2010]).Although defendant's challenge to the voluntariness of his plea survives his waiver of appeal, thisissue similarly is unpreserved due to defendant's failure to move to withdraw his plea or vacatethe judgment of conviction (see People[*2]v Board, 75 AD3d 833, 833 [2010]; People v Hey, 74 AD3d 1582,1583 [2010], lv denied 15 NY3d 852 [2010]; People v Smith, 56 AD3d 894, 894-895 [2008], lv denied12 NY3d 788 [2009]). The narrow exception to the preservation requirement was not triggeredhere as defendant did not make any statements during his plea colloquy that were inconsistentwith his guilt (see People v Board, 75 AD3d at 833; People v Smith, 56 AD3d at895). Defendant's responses to County Court's questioning were sufficient to establish theelements of the crime charged (seePeople v Glynn, 73 AD3d 1290, 1291 [2010]; People v Corbett, 52 AD3d 1023, 1024 [2008]).
To the extent that defendant's ineffective assistance of counsel claim survives his waiver ofthe right to appeal, it, too, is unpreserved for our review in light of defendant's failure to move towithdraw his plea or vacate the judgment of conviction (see People v Holmes, 75 AD3dat 835; People v Jenks, 69 AD3d1120, 1121 [2010], lv denied 14 NY3d 841 [2010]). In any event, our review of therecord reveals that defendant received meaningful representation.
As to defendant's claim that the predicate felony statement was insufficient to supportsentencing him as a second felony offender, we note that defendant was provided with a copy ofthe statement at sentencing, had an opportunity to review that document with counsel and voicedno objection thereto; thus, defendant's challenge in this regard is not preserved for our review (see People v Glynn, 72 AD3d1351, 1351-1352 [2010], lv denied 15 NY3d 773 [2010]). Further, defendantadmitted the prior offense, and the supporting documentation submitted with the People'spredicate felony statement was sufficient to "establish that defendant had been convicted of afelony offense within the relevant statutory period as tolled by an intervening period ofincarceration" (People v Ellis, 60AD3d 1197, 1198 [2009]; see CPL 400.21 [2]; Penal Law § 70.06 [1] [b] [iv],[v]; People v McDowell, 56 AD3d955, 956 [2008]).
Finally, defendant's challenge to the severity of his sentence is precluded by his waiver of theright to appeal (see People v Swindell, 72 AD3d at 1341; People v Smith, 37 AD3d 975,976 [2007], lv denied 9 NY3d 881 [2007]). Accordingly, the judgment of conviction isaffirmed.
Spain, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.