| People v Jean-Francois |
| 2011 NY Slip Op 01753 [82 AD3d 1366] |
| March 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MinksJean-Francois, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered April 19, 2010, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
Defendant pleaded guilty to attempted criminal possession of a weapon in the second degreein full satisfaction of a four-count indictment and waived his right to appeal. County Courtthereafter sentenced him as a second felony offender to a prison term of 3½ years, to befollowed by five years of postrelease supervision. Defendant now appeals.
We affirm. Initially, we reject defendant's contention that his waiver of the right to appealwas not knowing, voluntary and intelligent. The record reveals that County Court fully informeddefendant regarding the waiver, including that the right to appeal is separate and distinct from therights forfeited by a guilty plea (seePeople v Lopez, 6 NY3d 248, 256-257 [2006]; People v Tabbott, 61 AD3d 1183, 1184 [2009], lv denied13 NY3d 750 [2009]). Defendant also executed a written waiver in open court, assisted bycounsel, which described the ramifications of the waiver and acknowledged that defendant wasknowingly, voluntarily and intelligently waiving his right to appeal after discussing itsconsequences with counsel. Under these circumstances, we find that defendant validly waived hisright to appeal (see People vThomas, 71 AD3d 1231, 1231 [2010], lv denied 14 NY3d 893 [2010];People v Gilmour, 61 [*2]AD3d 1122, 1123 [2009],lv denied 12 NY3d 925 [2009]).
Defendant's contention that his plea was not knowingly, voluntarily and intelligently entered,which survives his waiver of the right to appeal, is not preserved for our review in light ofdefendant's failure to move to withdraw his plea or vacate the judgment of conviction (see People v Abrams, 75 AD3d927, 928 [2010], lv denied 15 NY3d 918 [2010]). Furthermore, the narrow exceptionto the preservation rule is inapplicable here as the record reflects that defendant did not makestatements during allocution that cast doubt on his guilt or negated a material element of thecrime (see People v Singh, 73 AD3d1384, 1385 [2010], lv denied 15 NY3d 809 [2010]; People v Bethel, 69 AD3d 1126,1127 [2010]).
Finally, defendant's claim that he was denied the effective assistance of counsel does notimplicate the voluntariness of his plea. Accordingly, it is foreclosed by his waiver of the right toappeal (see People v Leigh, 71AD3d 1288, 1288 [2010], lv denied 15 NY3d 775 [2010]).
Peters, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.