| People v Benson |
| 2011 NY Slip Op 06605 [87 AD3d 1228] |
| September 29, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v NathanBenson, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered November 19, 2010, convicting defendant upon his plea of guilty ofthe crime of sexual abuse in the first degree.
In satisfaction of an amended indictment, defendant pleaded guilty to sexual abuse in the firstdegree and waived his right to appeal. County Court thereafter sentenced him to the agreed-uponterm of imprisonment of two years, to be followed by 10 years of postrelease supervision.Defendant now appeals.
We affirm. To the extent that defendant challenges the validity of his appeal waiver, therecord demonstrates that County Court distinguished the right to appeal from the rightsautomatically forfeited by his guilty plea, after which defendant acknowledged his understandingof the waiver and, after being provided time to discuss the waiver with counsel, executed awritten waiver in open court. Under these circumstances, we find that defendant validly waivedhis right to appeal (see People vJean-Francois, 82 AD3d 1366, 1366 [2011], lv denied 17 NY3d 797 [2011]; People v Thomas, 71 AD3d 1231,1231-1232 [2010], lv denied 14 NY3d 893 [2010]).
Defendant's challenge to the voluntariness of his guilty plea is unpreserved for our [*2]review in light of defendant's failure to move to withdraw his pleaor vacate the judgment of conviction (see People v Hill, 81 AD3d 1040 [2011]; People v MacDonald, 77 AD3d989, 989 [2010], lv denied 15 NY3d 954 [2010]). Moreover, the narrow exception tothe preservation rule is inapplicable here, inasmuch as defendant did not make any statementsduring the plea allocution that were inconsistent with his guilt or otherwise called into questionthe voluntariness of his plea (see Peoplev Smith, 81 AD3d 1034, 1035 [2011], lv denied 16 NY3d 899 [2011]; People v Caldwell, 80 AD3d 998,998 [2011], lv denied 16 NY3d 857 [2011]).
Defendant's contention that he was denied the effective assistance of counsel, while notprecluded by his appeal waiver to the extent that it relates to the voluntariness of his plea, issimilarly unpreserved for our review due to his failure to move to withdraw his plea or vacate thejudgment of conviction (see People vPendelton, 81 AD3d 1037, 1038 [2011], lv denied 16 NY3d 898 [2011]; People v Fiske, 68 AD3d 1149,1150 [2009], lv denied 14 NY3d 800 [2010]). Finally, defendant's challenge to hissentence, including the denial of youthful offender status, is barred by his waiver of the right toappeal (see People v Rosseter, 62AD3d 1093, 1095 [2009]).
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.