| People v Estrada |
| 2013 NY Slip Op 00525 [102 AD3d 1064] |
| January 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LuisEstrada, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered December 2, 2011, which resentenced defendant following his convictionupon his plea of guilty of the crime of attempted criminal sale of a controlled substancein the third degree.
Defendant waived indictment and pleaded guilty to a superior court informationcharging him with attempted criminal sale of a controlled substance in the third degree.Pursuant to the plea agreement, defendant waived his right to appeal and County Courtagreed to sentence him to no more than five years in prison followed by three years ofpostrelease supervision, provided that he abide by the terms of his release to probationsupervision pending sentencing. Defendant was ultimately sentenced to a prison term offive years followed by three years of postrelease supervision. Defendant appeals.
We affirm. Although defendant's argument that his plea was not voluntary is notprecluded by his waiver of appeal, the record does not reflect that defendant preservedthis argument by making a motion to withdraw the plea or vacate the judgment ofconviction (see People vWhitfield, 94 AD3d 1238, 1238 [2012]; People v Jeske, 55 AD3d 1057, 1058 [2008], lvdenied 11 NY3d 898 [2008]). As nothing in the plea colloquy casts doubt upondefendant's guilt, the narrow exception to the preservation requirement is not applicable(see People v Abrams, 75 [*2]AD3d 927, 928[2010], lv denied 15 NY3d 918 [2010]; People v McKeney, 45 AD3d 974, 975 [2007]; People v Rogers, 15 AD3d682, 682-683 [2005]). Finally, defendant's claim that the sentence imposed washarsh and excessive is foreclosed by his valid waiver of appeal (see People v Stoff, 74 AD3d1640, 1641 [2010], lv denied 15 NY3d 810 [2010]; People v Walley, 63 AD3d1284, 1286 [2009]; People v Rogers, 15 AD3d at 683).
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.