| People v Davis |
| 2011 NY Slip Op 04319 [84 AD3d 1645] |
| May 26, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph M.Davis, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered June 7, 2010, convicting defendant upon his plea of guilty of the crime of burglary inthe third degree.
Defendant waived indictment and, in satisfaction of a superior court information, pleadedguilty to burglary in the third degree, waived his right to appeal and was sentenced to theagreed-upon prison term of 2½ to 5 years. Defendant now appeals contending, among otherthings, that his plea was involuntary.
Preliminarily, defendant argues and the People concede that the underlying waiver of theright to appeal is invalid. As for the remaining issues, defendant's challenge to the factualsufficiency and voluntariness of his plea is unpreserved for our review in light of defendant'sfailure to move to withdraw his plea or vacate the judgment of conviction (see People v Bolden, 78 AD3d1419, 1420 [2010], lv denied 16 NY3d 828 [2011]; People v Hey, 74 AD3d 1582,1583 [2010], lv denied 15 NY3d 852 [2010]; People v Lopez, 74 AD3d 1498, 1498-1499 [2010]). Contrary todefendant's assertion, the narrow exception to the preservation requirement was not triggeredhere, as defendant did not make any statements during the allocution that were inconsistent withhis guilt or otherwise called into question the voluntariness of his plea (see People v Board, 75 AD3d 833,833 [2010]; People v Glynn, 73AD3d 1290, 1291 [2010]; People[*2]v Campbell, 66 AD3d 1059, 1060 [2009]).Additionally, defendant "was not required to recite the elements of the crime or engage in afactual exposition" (People vWilliams, 35 AD3d 971, 972 [2006], lv denied 8 NY3d 928 [2007]; seePeople v Board, 75 AD3d at 834; People v Campbell, 66 AD3d at 1060). Hence,were we to reach these issues, we would find that defendant's responses to County Court'sinquiries were sufficient to establish both his guilt and that the plea as a whole was knowing,intelligent and voluntary.[FN*]
Although defendant's claim that his waiver of indictment was jurisdictionally defective isproperly before us (see People vDonnelly, 23 AD3d 921, 922 [2005]), we find it to be lacking in merit. During thecourse of the plea allocution, County Court explained the effect of the waiver, and defendantevidenced his understanding that, by waiving indictment, he was giving up his right to have thematter presented to a grand jury. Additionally, the record contains a copy of a written waiver ofindictment signed by defendant and an Assistant District Attorney, as well as an order approvingthe waiver, wherein County Court expressly found that defendant had executed the waiver inopen court in the presence of his counsel and that such waiver was in compliance with CPL195.10 and 195.20. Under these circumstances, we conclude that defendant's waiver ofindictment was valid (see People v McIntyre, 178 AD2d 559, 560 [1991]; see alsoPeople v Kalvaitis, 238 AD2d 756, 757 [1997], lv denied 90 NY2d 859[1997])—even though the plea minutes are silent with regard to defendant's executionthereof (see People v Wicks, 42AD3d 585 [2007]; compare People v Donnelly, supra).
Finally, in light of defendant's extensive criminal history, which spans more than 35 years,we find no abuse of discretion or extraordinary circumstances warranting a reduction of hissentence in the interest of justice (seePeople v Torres, 81 AD3d 995 [2011]; People v Rose, 79 AD3d 1365, 1367 [2010]).
Peters, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: To the extent that defendantargues that counsel failed to adequately explore potential defenses, such a claim involves mattersoutside the record and, as such, is more properly the subject of a CPL article 440 motion (see People v Pendelton, 81 AD3d1037, 1039 [2011]; People vTerpening, 79 AD3d 1367, 1368 [2010], lv denied 16 NY3d 837 [2011]).