| People v Santana |
| 2012 NY Slip Op 03891 [95 AD3d 1503] |
| May 17, 2012 |
| Appellate Division, Third Department |
| 1—The People of the State of New York, Respondent, v JoseL. Santana, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Greene County (Lalor, J.), renderedMay 25, 2010, convicting defendant upon his plea of guilty of the crimes of driving whileintoxicated and aggravated unlicensed operation of a motor vehicle.
In satisfaction of a superior court information, defendant pleaded guilty to driving whileintoxicated and aggravated unlicensed operation of a motor vehicle and waived his right toappeal. While County Court agreed to sentence defendant to a period of probation in accordancewith the terms of the plea agreement, defendant was warned that the court was not bound by theplea agreement if he ran "afoul of the law" or did not appear for sentencing. Thereafter, defendantdid not appear for sentencing and a bench warrant was issued. Upon defendant's return, the courtsentenced him to concurrent prison terms of 1 to 3 years. Defendant now appeals.
Initially, we are not persuaded by defendant's contention that the waiver of the right to appealwas not knowing, intelligent and voluntary. The record establishes that County Court separatelyexplained the rights encompassed by the appeal waiver, and defendant explicitly acknowledgedthat he understood and was freely waiving those rights (see People v Tolliver, 92 AD3d 1024 [2012]; People v Thomas, 81 AD3d 997,998 [2011], lv denied 16 NY3d 900[*2][2011]).
Next, defendant's challenge to the voluntariness of his guilty plea is unpreserved for ourreview as the record indicates that he has failed to move to withdraw his plea or vacate thejudgment of conviction (see People v Tolliver, 92 AD3d at 1024). Furthermore, given theabsence of any statement by defendant during the plea allocution casting doubt upon his guilt ornegating an essential element of the crimes to which he pleaded guilty, the narrow exception tothe preservation rule is inapplicable (see id.).
Defendant's assertion that County Court improperly imposed an enhanced sentence withoutaffording him an opportunity to withdraw his plea is without merit as the record verifies that thecourt informed defendant during the plea colloquy of the maximum potential prison term and thatit was not bound by the terms of the plea agreement in the event that defendant failed to appearfor sentencing (see People v Figgins, 87 NY2d 840, 841 [1995]; People vThomas, 81 AD3d at 998). Additionally, defendant's challenge to the severity of hisenhanced sentence is foreclosed by his knowing, voluntary and intelligent waiver of his right toappeal (see People v Small, 82AD3d 1451, 1452 [2011], lv denied 17 NY3d 801 [2011]).
Finally, to the extent that defendant's ineffective assistance of counsel claim impacts thevoluntariness of his plea and survives his appeal waiver, it is nevertheless unpreserved as there isno indication in the record that defendant either moved to withdraw his plea or vacate thejudgment of conviction (see People vMacDonald, 77 AD3d 989, 990 [2010], lv denied 15 NY3d 954 [2010]).
Peters, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.