| People v Audette |
| 2013 NY Slip Op 05338 [108 AD3d 943] |
| July 18, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRobert L. Audette, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered November 7, 2011, convicting defendant upon his plea of guilty of the crimesof disseminating indecent material to a minor in the second degree and failure to registeran Internet account or identifier under the Sex Offender Registration Act.
Defendant, a registered sex offender, waived indictment and agreed to be prosecutedby a superior court information charging him with the crimes of disseminating indecentmaterial to a minor in the second degree and failure to register an Internet account oridentifier under the Sex Offender Registration Act. He pleaded guilty to these chargesand waived his right to appeal orally and in writing. Defendant was thereafter sentenced,in accordance with the plea agreement, to an aggregate prison term of 1½ to 3years.
Defendant's sole contention on appeal is that his sentence is harsh and excessive.Initially, to the extent that defendant's recitation of the underlying facts in his briefimplies an additional claim that his guilty plea was not knowing or voluntary, we notethat, while such a contention would not be precluded by defendant's waiver of the rightto appeal, it was not preserved for our review inasmuch as the record does not reveal thathe made a motion to withdraw his plea or to vacate the judgment of conviction (see People v McGowan, 98AD3d 1192, 1192 [2012]; People v Dixon, 66 AD3d 1237, 1237 [2009], lvdenied 13 NY3d 906 [2009]). Moreover, the narrow exception to the preservationrequirement is inapplicable inasmuch as defendant made no statements inconsistent withhis guilt or which called into question the voluntariness of his plea (see People v Secore, 102AD3d 1059, 1060 [2013]; People v Scribner, 77 AD3d 1022, 1023 [2010], lvdenied 16 NY3d 746 [2011]).[*2]
Finally, on the harsh and excessive issue,defendant is "precluded from raising this claim given his valid waiver of the right toappeal" (People v Cano, 93AD3d 994, 994 [2012], lv denied 19 NY3d 995 [2012]; see People v Lewis, 95 AD3d1442, 1443 [2012], lv denied 19 NY3d 998 [2012]). Accordingly, we findno basis to disturb the judgment of conviction.
Peters, P.J., Lahtinen, Spain and Garry, JJ., concur. Ordered that the judgment isaffirmed.