| People v Teele |
| 2012 NY Slip Op 00662 [92 AD3d 972] |
| February 2, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bryant M.Teele, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered April 15, 2009, convicting defendant upon his plea of guilty of the crimes of criminalsale of a controlled substance in the third degree, criminal possession of a weapon in the thirddegree and criminally using drug paraphernalia in the second degree.
Defendant waived indictment and pleaded guilty to a superior court information charginghim with criminal sale of a controlled substance in the third degree, criminal possession of aweapon in the third degree and criminally using drug paraphernalia in the second degree.Defendant was sentenced as a second felony offender in accordance with the plea agreement tofour years in prison on the criminal sale charge, to be followed by three years of postreleasesupervision, 2 to 4 years in prison on the criminal possession of a weapon charge and one year injail on the drug paraphernalia charge, all of which were to run concurrently. Defendant nowappeals.
Initially, we note that because defendant did not move to withdraw his plea or vacate thejudgment of conviction, his challenge to the voluntariness and facial sufficiency of his plea isunpreserved for our review (see Peoplev Jenks, 69 AD3d 1120, 1121 [2010], lv denied 14 NY3d 841 [2010]). Contraryto defendant's contention, the narrow exception to the preservation [*2]requirement is inapplicable here, as defendant made no statementsduring the plea allocution that tended to negate a material element of the crimes or otherwisecalled into question the voluntariness of his plea (see People v White, 84 AD3d 1641, 1642 [2011]; People v Davis, 84 AD3d 1645,1646 [2011], lv denied 17 NY3d 815 [2011]). As for defendant's claim that the recitationof the facts in connection with the crime of criminal possession of a weapon in the third degree(see Penal Law § 265.02 [1]) did not establish that the semi-automatic handgunwas operable, "we note that the exception to the preservation rule applies only where a recitationof facts casts significant doubt on a defendant's guilt and not, as here, where 'the sufficiency ofthe articulation of the element is challenged' " (People v Martinez-Velazquez, 89 AD3d 1318, 1319 [2011],quoting People v Vonderchek, 245 AD2d 979, 980 [1997], lv denied 91 NY2d945 [1998]). To the extent that any of defendant's arguments are preserved, we find thatdefendant's responses to County Court's inquiries sufficiently established both defendant's guiltand that he entered a knowing, voluntary and intelligent plea.
Mercure, A.P.J., Peters, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.