| People v Williams |
| 2012 NY Slip Op 08360 [101 AD3d 1174] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v QwaliWilliams, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered February 4, 2011, convicting defendant upon his plea of guilty of thecrime of attempted promoting prison contraband in the first degree.
Defendant, an inmate, was charged in an indictment with two counts of promoting prisoncontraband in the first degree. He thereafter moved to dismiss the indictment on the ground thatthe People failed to honor his written request to appear before the grand jury. Following CountyCourt's denial of the motion, defendant pleaded guilty to attempted promoting prison contrabandin the first degree in full satisfaction of the charges. In accordance with the plea agreement,defendant was sentenced as a second felony offender to 1½ to 3 years in prison, to runconsecutively to the prison term he was already serving. He now appeals.
We affirm. Initially, defendant's claim that the indictment should be dismissed based uponthe People's failure to honor his request to appear before the grand jury was waived by his guiltyplea (see People v Johnson, 97AD3d 990, 991 [2012]; People v Chappelle, 250 AD2d 878, 878-879 [1998], lvdenied 92 NY2d 894 [1998]; People v Empey, 242 AD2d 839, 839 [1997], lvdenied 91 NY2d 834 [1997]). Further, inasmuch as the record before us does not indicatethat defendant moved to withdraw his plea or vacate the judgment of conviction, his [*2]challenge to the voluntariness of his plea has not been preserved forour review and the narrow exception to the preservation rule is not applicable, as nothing in theplea allocution cast doubt on his guilt or negated an essential element of the crime (see People v DeJesus, 96 AD3d1295, 1295 [2012]; People vClemons, 96 AD3d 1086, 1087 [2012], lv denied 19 NY3d 1101 [2012]).Similarly, defendant's claim of ineffective assistance of counsel is unpreserved by his failure tomove to withdraw his plea or vacate the judgment of conviction (see People v Doe, 95 AD3d 1449,1449 [2012], lv denied 19 NY3d 995 [2012]; People v Burnett, 93 AD3d 993, 993 [2012]). Finally, with regardto defendant's claim that his sentence is harsh and excessive, considering defendant's criminalhistory and mindful that he agreed to the sentence imposed, we find no extraordinarycircumstances or an abuse of discretion warranting a reduction of the sentence in the interest ofjustice (see People v Lasanta, 89AD3d 1324, 1324 [2011]; People vBadmaxx, 89 AD3d 1243, 1243 [2011], lv denied 18 NY3d 881 [2012]).
Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.