People v Hill

2011 NY Slip Op 00751

Decided on February 10, 2011

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 10, 2011
103170



Calendar Date: January 10, 2011
Before: Cardona, P.J., Mercure, Spain, Malone Jr. and Stein, JJ.


Donnial K. Hinds, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady
(Gerald A. Dwyer of counsel), for respondent.

MEMORANDUM AND ORDER


Spain, J.

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered October 14, 2009, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

Defendant pleaded guilty to criminal possession of a weapon in the second degree in full satisfaction of a 14-count indictment and waived his right to appeal. County Court thereafter sentenced defendant as a second violent felony offender to a term of imprisonment of seven years, to be followed by five years of postrelease supervision. Defendant now appeals and we affirm.

Defendant's challenge to the voluntariness of his plea survives his waiver of the right to appeal but is unpreserved for our review in light of his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Barrett, 71 AD3d 1340, 1340-1341 [2010]; People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893 [2010]). Moreover, inasmuch as defendant did not make any statements during the plea allocution that negated a material element of the crime or cast doubt upon his guilt or the voluntariness of his plea, the narrow exception to the preservation rule is inapplicable (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Brown, 75 AD3d 655, 656 [2010]; People v Hey, 74 AD3d 1582, 1583 [2010], [*2]lv denied 15 NY3d 852 [2010]).

Further, defendant's contention that he was not given an opportunity to challenge his status as a second violent felony offender is belied by the record. After defendant initially questioned his status, County Court held a hearing on the matter at which defendant admitted that he was previously convicted of a violent felony and he did not at any time challenge the constitutionality of that conviction. Accordingly, we conclude that defendant was properly sentenced as a second violent felony offender (see People v Mosley, 70 AD3d 1126, 1127 [2010], lv denied 14 NY3d 890 [2010]; People v Saunders, 2 AD3d 905, 906 [2003], lv denied 1 NY3d 634 [2004]).

Cardona, P.J., Mercure, Malone Jr. and Stein, JJ., concur.

ORDERED that the judgment is affirmed.