| People v Daniels |
| 2011 NY Slip Op 06042 [86 AD3d 861] |
| July 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David R.Daniels, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), renderedJune 12, 2009, convicting defendant upon his plea of guilty of the crime of driving whileintoxicated.
Defendant was charged in an indictment with alcohol-related driving offenses. He was totake part in Steuben County Drug Court to address unrelated criminal charges in that county. Assuch, he pleaded guilty to one count of driving while intoxicated and was to be sentenced toprobation, a special condition of which was to be his successful completion of Drug Court.Defendant failed to participate in Drug Court and, given County Court's unwillingness tosentence him to probation, he withdrew his guilty plea. County Court then committed to asentence of one year in jail, and defendant successfully sought to have his guilty plea restored.County Court imposed the agreed-upon jail sentence, and defendant now appeals.
We affirm. Defendant's challenge to the sufficiency of his plea allocution is unpreserved dueto his failure to move to withdraw the plea or vacate the judgment of conviction, and this casedoes not fall within the narrow exception to the preservation rule (see People v Louree, 8 NY3d 541,545 [2007]; People v Thomas, 63AD3d 642 [2009], lv denied 13 NY3d 862 [2009]). In any event, defendant's secondguilty plea only differed from the first in the sentence to be imposed, and County Court "validlyincorporated by reference the full allocution . . . that had been conducted at the firstplea proceeding" (People v Thomas, 63 AD3d [*2]at 642;see People v Elkin, 154 AD2d 936 [1989], lv denied 74 NY2d 947 [1989]).
As a final matter, we have examined and are unpersuaded by defendant's claim that thesentence imposed was harsh and excessive.
Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that thejudgment is affirmed.