| People v Roche |
| 2013 NY Slip Op 03700 [106 AD3d 1328] |
| May 23, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesT. Roche, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Stein, J.P. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered December 14, 2009, convicting defendant upon his plea of guiltyof the crime of attempted criminal sale of a controlled substance in the third degree.
In satisfaction of a six-count indictment stemming from two cocaine sales, defendantpleaded guilty to attempted criminal sale of a controlled substance in the third degree andwaived his right to appeal his conviction and sentence. Defendant pleaded guilty with theunderstanding that he would be sentenced, as a second felony offender, to a prison termof two years to be followed by a period of postrelease supervision between 1½ and3 years. He declined to withdraw his plea after learning that he did not qualify as apredicate felon, but that his sentence would not be reduced. He argued, however, thatalternatives to a prison sentence or, at the very least, a shorter sentence should beconsidered. County Court imposed a prison sentence of two years to be followed bypostrelease supervision of two years, and defendant now appeals.
We affirm. Defendant's mistaken belief that he would be sentenced as a secondfelony offender when he entered his guilty plea did not render his appeal waiver invalidand, to the extent that he also challenges the knowing and voluntary nature of his guiltyplea, the record does not reflect that he preserved that claim for our review by moving towithdraw the plea or vacate the judgment of conviction (see People v Ortiz, 69 AD3d966, 967-968 [2010]; People v Dean, [*2]52AD3d 1308, 1308-1309 [2008], lv denied 11 NY3d 736 [2008]). Defendant'svalid appeal waiver bars his further claims that the sentence was harsh and excessive (see People v Griffin, 100AD3d 1153, 1154 [2012], lv denied 20 NY3d 1011 [2013]) and that CountyCourt abused its discretion in refusing to have him evaluated for inclusion in the judicialdiversion program (see CPL art 216; People v Buswell, 88 AD3d 1164, 1165 [2011]; People v Ivey, 79 AD3d1531, 1532 [2010], lv denied 16 NY3d 859 [2011]).
Spain, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.