People v Hare

2013 NY Slip Op 06406 [110 AD3d 1117]

October 3, 2013

Appellate Division, Third Department

As corrected through Wednesday, November 27, 2013

The People of the State of New York, Respondent, v TaraA. Hare, Appellant.

—[*1]Theresa M. Suozzi, Saratoga Springs, for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown (Brian W. Felton of counsel), forrespondent.

Spain, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered March 29, 2012, which revoked defendant's probation and imposed a sentenceof imprisonment.

In March 2011, defendant pleaded guilty to criminal mischief in the third degree andwas sentenced to five years of probation. Subsequently, defendant was charged withviolating three conditions of her probation, including leaving the jurisdiction withoutconsent, when it became known that she had relocated to New Jersey. Defendantthereafter pleaded guilty to that specific violation and, although County Court made nocommitment as to sentence, she waived her right to appeal during the colloquy and inwriting in open court. The court subsequently revoked defendant's probation andresentenced her to 11/3 to 4 years in prison. Defendant now appeals.

We affirm. Insofar as the record does not demonstrate that defendant moved towithdraw her plea or vacate the judgment of conviction, her claim that her guilty pleawas not knowing, intelligent and voluntary is unpreserved for this Court's review (see People v Cogswell, 94AD3d 1236, 1237 [2012], lv denied 19 NY3d 958 [2012]; People v Miller, 90 AD3d1416, 1416-1417 [2011], lv denied 18 NY3d 960 [2012]). Even were we toaddress the merits of defendant's contention, the record demonstrates that during herlengthy colloquy with County Court, she acknowledged that she had ample time toconfer with counsel about possible defenses [*2]and theconsequences of her admission and she indicated that she was satisfied with herrepresentation; she was advised that she was giving up her right to a hearing and that thePeople were required to prove that she had violated her probation. She was also givennotice that she could be sentenced to a prison term of up to 11/3 to 4 years.Moreover, the narrow exception to the preservation requirement is inapplicable asdefendant did not make any statements during the proceedings that tended to cast doubtupon her guilt or the voluntariness of her plea (see People v Secore, 102 AD3d 1057, 1058 [2013], lvdenied 21 NY3d 1019 [2013]; People v Whalen, 101 AD3d 1167, 1169 [2012], lvdenied 20 NY3d 1105 [2013]). Finally, given that defendant was advised of themaximum potential sentence that she faced, her contention that her sentence was harshand excessive is precluded by her valid waiver of appeal, which was fully explained toher on the record and she indicated that she understood (see People v Hidalgo, 91NY2d 733, 736-737 [1998]; People v Ducheneaux, 97 AD3d 852, 853 [2012]; People v Lewis, 69 AD3d1232, 1234 [2010]).

Rose, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.