| People v Frank |
| 2012 NY Slip Op 07711 [100 AD3d 1145] |
| November 15, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GregoryFrank, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered April 2, 2010, convicting defendant upon his plea of guilty of the crimes of attemptedburglary in the second degree (two counts) and criminal possession of stolen property in the fifthdegree (two counts).
Defendant and a codefendant were charged in a 23-count indictment with various crimesstemming from a number of burglaries in Rensselaer County. In satisfaction thereof, defendantpleaded guilty to two counts of attempted burglary in the second degree and two counts ofcriminal possession of stolen property in the fifth degree, and waived his right to appeal. Inaccordance with the plea agreement, he was sentenced to 5½ years in prison, to be followedby five years of postrelease supervision, on the attempted burglary convictions and one year injail on the criminal possession convictions, which sentences were to run concurrently. Defendantappeals.
Defendant's sole argument is that his plea of guilty to one of the counts of attempted burglaryin the second degree was factually deficient, rendering the entire guilty plea a nullity andrequiring reversal of the judgment of conviction. Specifically, defendant claims that the pleaallocution he made with respect to the first count of the indictment failed to establish the element[*2]of intent, which is a necessary element of the crime ofattempted burglary in the second degree (see Penal Law §§ 110.00, 140.25[2]). Initially, we note that defendant's valid waiver of the right to appeal precludes him fromchallenging the factual sufficiency of the plea allocution (see People v Rose, 41 AD3d 1033, 1034 [2007], lv denied9 NY3d 926 [2007]; People vBagley, 34 AD3d 992, 992 [2006], lv denied 8 NY3d 878 [2007]). Moreover,this issue has not been preserved for our review inasmuch as the record before us fails to indicatethat defendant moved to withdraw his guilty plea or vacate the judgment of conviction (seePeople v Lopez, 71 NY2d 662, 666 [1988]; People v Leszczynski, 96 AD3d 1162, 1162 [2012], lvdenied 19 NY3d 998 [2012]). Notably, the exception to the preservation rule is inapplicableinasmuch as defendant's recitation of the facts underlying the crime to which he pleaded guiltydoes not cast significant doubt on his guilt based on a theory of accessorial liability (seePenal Law § 20.00) or call into question the voluntariness of his plea (see People vLopez, 71 NY2d at 666; People vBethel, 69 AD3d 1126, 1127 [2010]; People v Fiske, 68 AD3d 1149, 1150 [2009], lv denied 14NY3d 800 [2010]). Therefore, the judgment must be affirmed.
Mercure, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed.