| People v White |
| 2012 NY Slip Op 05207 [96 AD3d 1299] |
| June 28, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dante White,Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered April 8, 2011, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal possession ofa controlled substance in the third degree, executed a waiver of the right to appeal, and wassentenced in accordance with the plea agreement to a prison term of four years followed by twoyears of postrelease supervision. Defendant appeals.
Initially, we are unpersuaded by defendant's contention that he did not knowingly waive theright to appeal. Defendant was advised that the appeal waiver was part of the plea agreement andhe executed a written waiver in open court after discussing the appeal waiver with counsel.Although County Court made a minimal inquiry, the record reveals that defendant's waiver of theright to appeal was a knowing and voluntary choice (see People v Binns, 82 AD3d 1449, 1450 [2011]; People v McCaskill, 76 AD3d751, 752 [2010]). Accordingly, defendant's challenge to the factual sufficiency of his plea isforeclosed; it is also unpreserved, as there is no indication on this record that he moved towithdraw his plea or vacate the judgment of conviction (see People v Taylor, 89 AD3d 1143, 1143 [2011]). The exceptionto the preservation requirement is inapplicable, as defendant made no statements during theallocution that negated an essential [*2]element of the crime orotherwise cast doubt upon his guilt (seePeople v McFarren, 83 AD3d 1209, 1209-1210 [2011], lv denied 17 NY3d 860[2011]).
To the extent that defendant's claim of ineffective assistance of counsel relates to thevoluntariness of the plea and, therefore, survives his appeal waiver, it is similarly unpreserved forour review given defendant's failure to move to withdraw his plea or vacate the judgment ofconviction (see People v Tatum, 82AD3d 1411, 1411 [2011], lv denied 17 NY3d 810 [2011]; People v Ivey, 79 AD3d 1531,1532 [2010], lv denied 16 NY3d 859 [2011]). Finally, defendant's contention that thesentence was harsh and excessive and should be reduced in the interest of justice is barred by hisvalid appeal waiver (see People v Ivey, 79 AD3d at 1532; People v Fields, 41 AD3d 1089[2007], lv denied 9 NY3d 961 [2007]).
Peters, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.