| People v Burke |
| 2011 NY Slip Op 09047 [90 AD3d 1246] |
| December 15, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Daniel J.Burke, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Columbia County (Czajka, J.),rendered June 30, 2010, convicting defendant upon his plea of guilty of the crimes of burglary inthe second degree (nine counts), attempted burglary in the second degree and criminal possessionof stolen property in the fifth degree (two counts).
Defendant was charged in a 12-count indictment with burglary in the second degree (ninecounts), attempted burglary in the second degree and criminal possession of stolen property in thefifth degree (two counts). He subsequently entered a plea of guilty to the entire indictment andwaived his right to appeal all issues except as to the sentence to be imposed by County Court.Thereafter, defendant was sentenced to an aggregate prison sentence of 14 years, plus five yearsof postrelease supervision. Defendant now appeals.
Because defendant has not moved to withdraw his guilty plea or sought to vacate thejudgment of conviction, he has not preserved for our review his claim that his plea was notvoluntarily entered (see People vRobinson, 86 AD3d 719, 720 [2011]; People v Young, 81 AD3d 995, 996 [2011], lv denied 16NY3d 901 [2011]). Moreover, the narrow exception to the preservation requirement is notimplicated here, as he made no statements during his plea that tended to cast doubt upon hisguilt, or otherwise raised any question as to the voluntariness of his [*2]guilty plea or his understanding that County Court was not boundby the People's recommendation regarding sentence (see People v Planty, 85 AD3d 1317, 1318 [2011], lv denied17 NY3d 820 [2011]; People vAlvarez, 73 AD3d 1229 [2010]). Defendant's claim that his counsel was ineffective isalso not preserved for our review (seePeople v Benson, 87 AD3d 1228, 1228 [2011]; People v Glynn, 73 AD3d 1290, 1291 [2010]) and, in any event, isnot supported by the record.
Defendant also claims that he has been denied both his statutory and constitutional rights to aspeedy trial. Defendant forfeited his CPL 30.30 statutory claim by pleading guilty (see People v Dalton, 69 AD3d1235, 1235 [2010]; People vZakrzewski, 69 AD3d 1055 [2010], lv denied 15 NY3d 758 [2010]). As for hisconstitutional claim, while it survives his guilty plea and appeal waiver (see People v McCorkle, 67 AD3d1249, 1250 [2009]; People vKing, 62 AD3d 1162, 1163 [2009]), no such argument was raised before County Courtand, therefore, the issue is unpreserved for our review (see People v Smith, 66 AD3d 1223, 1225 [2009], lv denied14 NY3d 773 [2010]; People vSalaam, 36 AD3d 969, 970 [2007]). We also note that when defendant entered his guiltyplea, he signed a written statement acknowledging that he had waived his right to a speedy trial,and his counsel stated that no claim would be made that defendant was prejudiced by the lengthof time it took to complete this prosecution.
Finally, defendant's sentence, in our view, was not harsh or excessive. By pleading guilty tothese charges, defendant admitted to burglarizing at least nine separate residences over afour-month period of time, and attempting to break into another. The sentence imposed byCounty Court, an aggregate of 14 years, falls far short of the maximum, and the record reveals noabuse of discretion or any extraordinary circumstances that would warrant its modification (see People v Merchant, 79 AD3d1526, 1527 [2010]).
Mercure, A.P.J., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.