| People v Martinez-Velazquez |
| 2011 NY Slip Op 08501 [89 AD3d 1318] |
| November 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Onic A.Martinez-Velazquez, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (William J. Mycek of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered October 24, 2008, convicting defendant upon his plea of guilty of the crime of robbery in thesecond degree.
Defendant was charged in an indictment with robbery in the first degree and grand larceny in thefourth degree, stemming from his involvement in the robbery of a restaurant. Defendant pleaded guiltyto the reduced charge of robbery in the second degree in full satisfaction of the indictment and waivedhis right to appeal. County Court thereafter sentenced defendant to six years in prison, to be followedby five years of postrelease supervision. Defendant now appeals.
Initially, contrary to defendant's contention, his waiver of the right to appeal was valid as thetranscript of the plea colloquy and the counseled written waiver entered by defendant in open courtdemonstrate that he voluntarily, knowingly and intelligently waived his right to appeal (see People v Pendelton, 81 AD3d1037, 1037 [2011], lv denied 16 NY3d 898 [2011]; People v Diaz, 72 AD3d 1349, 1350 [2010], lv denied 15NY3d 773 [2010]). Defendant's claim that his plea was not voluntarily, knowingly and intelligentlyentered, which survives his waiver of the right to appeal, is not preserved for our review in light ofdefendant's failure to move to withdraw his plea or vacate the judgment of conviction (see People v Wicks, 83 AD3d 1223,1224 [2011], [*2]lv denied 17 NY3d 810 [2011]; People v Jean-Francois, 82 AD3d1366, 1366-1367 [2011], lv denied 17 NY3d 797 [2011]). Furthermore, the narrowexception to the preservation rule is inapplicable here in that the record reflects that defendant did notmake any statements during the allocution that cast doubt on his guilt or negated an essential element ofthe crime (see People v McFarren, 83AD3d 1209, 1209 [2011], lv denied 17 NY3d 860 [2011]; People v Campbell, 81 AD3d 1184,1185 [2011]). To the extent that defendant claims that his recitation of the facts did not establish theelement of force required by the crime of robbery in the second degree (see Penal Law§ 160.10), we note that the exception to the preservation rule applies only where a recitation offacts casts significant doubt on a defendant's guilt and not, as here, where "the sufficiency of thearticulation of the element is challenged" (People v Vonderchek, 245 AD2d 979, 980 [1997],lv denied 91 NY2d 945 [1998]; accord People v Seeber, 12 AD3d 950, 950 [2004], lv denied4 NY3d 803 [2005]).
Spain, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.