| People v Perez |
| 2011 NY Slip Op 02083 [82 AD3d 1451] |
| March 24, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Angel L.Perez, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered September 8, 2009, convicting defendant upon his plea of guilty of the crimes ofburglary in the first degree and assault in the second degree.
Defendant pleaded guilty to burglary in the first degree and assault in the second degree andwaived his right to appeal. County Court thereafter sentenced defendant, as agreed, to concurrentprison terms of five years, to be followed by 2½ years of postrelease supervision.Defendant now appeals and we affirm.
Defendant's contention that his plea was not knowingly, intelligently or voluntarily enteredand County Court should have vacated it is not preserved for our review due to his failure tomove to withdraw the plea or vacate the judgment of conviction (see People v Abrams, 75 AD3d927, 928 [2010], lv denied 15 NY3d 918 [2010]; People v Palmo, 223 AD2d952, 953 [1996]). Moreover, the narrow exception to the preservation rule is not applicable here(see People v Lopez, 71 NY2d 662, 666-667 [1988]). Although defendant was initiallyhesitant to admit to the facts relating to the burglary charge, County Court gave him time toconsult with counsel prior to entering his plea and properly ensured that the plea was voluntaryand that defendant understood the nature of the plea (see People v Swindell, 72 AD3d 1340, 1341 [2010], lvdenied 15 NY3d 778 [2010]). Inasmuch as there was a factual basis for defendant's plea, his[*2]subsequent unsubstantiated protestations of innocence duringthe presentence investigation and at sentencing were insufficient to warrant a vacatur of his plea(see People v Chapple, 269 AD2d 621, 622 [2000], lv denied 94 NY2d 917[2000]).
Lahtinen, J.P., Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.