| People v Tatum |
| 2011 NY Slip Op 01899 [82 AD3d 1411] |
| March 17, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RoderickTatum, Appellant. |
—[*1]
Kavanagh, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered April 23, 2009, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to the crime of criminal possession of a controlled substance in thethird degree and waived his right to appeal. County Court sentenced him as a second felony drugoffender to a prison term of eight years, to be followed by three years of postrelease supervision.Defendant now appeals.
We affirm. Defendant claims that he received the ineffective assistance of counsel in that hewas not advised of statutory changes, enacted shortly before his sentencing, that lowered theminimum permissible prison term in his case (see Penal Law § 70.70 [3] [b] [i];see also L 2009, ch 56, part AAA, §§ 23, 33 [f]). While his argumentsurvives his appeal waiver to the extent that it implicates the voluntariness of his plea, it isunpreserved for our review given his failure to move to withdraw his guilty plea or vacate thejudgment of conviction (see People vOlmstead, 77 AD3d 1179, 1181 [2010]; People v Peterkin, 77 AD3d 1017 [2010]). In any event, defendanthas an extensive criminal history and was sentenced to a prison term well above either the pre- orpostamendment minimum, and counsel's alleged failure to consider the amendment did notdeprive defendant of meaningful representation (see People v Modica, 64 NY2d 828,829[*2][1985]; People v Palma, 305 AD2d 333, 334[2003], lv denied 100 NY2d 644 [2003]).
Defendant's challenge to the knowing and voluntary nature of his guilty plea is similarlyunpreserved for our review, and he made no statements during the plea colloquy that would bringthis case within the narrow exception to the preservation rule (see People v Martinez, 79 AD3d1378, 1378-1379 [2010]; People vSingh, 73 AD3d 1384, 1384-1385 [2010], lv denied 15 NY3d 809 [2010]). Hisvalid appeal waiver forecloses his remaining attack upon the agreed-upon sentence as harsh andexcessive (see People v Singh, 73 AD3d at 1385).
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.