| People v Moses |
| 2013 NY Slip Op 06407 [110 AD3d 1118] |
| October 3, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v WillieN. Moses, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered May 7, 2012, convicting defendant upon his plea of guilty of thecrime of burglary in the second degree.
In full satisfaction of two indictments, two divestitures and several uncharged crimes,defendant pleaded guilty to burglary in the second degree and waived his right to appeal.Defendant thereafter was sentenced to the agreed-upon prison term of seven years, to befollowed by five years of postrelease supervision, and was ordered to pay restitution.Defendant now appeals.
We affirm. Although defendant's challenge to the voluntariness of his plea surviveshis uncontested waiver of the right to appeal (see People v Dame, 100 AD3d 1032, 1033 [2012], lvdenied 21 NY3d 1003 [2013]), this issue is not preserved for our review, as therecord before us fails to reflect that defendant moved to withdraw his plea or vacate thejudgment of conviction (seePeople v Williams, 101 AD3d 1174, 1174 [2012]; People v Leszczynski, 96AD3d 1162, 1162 [2012], lv denied 19 NY3d 998 [2012]). Moreover, thenarrow exception to the preservation rule is inapplicable here, as defendant did not makeany statements during the plea allocution that were inconsistent with his guilt or negatedan essential element of the crime to [*2]which he pleadedguilty (see People vSantana, 95 AD3d 1503, 1504 [2012]). Similarly, to the extent that defendantargues that he was denied the effective assistance of counsel (and assuming such claimimpacts the voluntariness of his plea), defendant's claim survives his appeal waiver butalso is unpreserved in the absence of an appropriate postallocution motion (see People v Lazore, 102AD3d 1017, 1017-1018 [2013]; People v Walton, 101 AD3d 1489, 1490 [2012], lvdenied 20 NY3d 1105 [2013]). Finally, any challenge to the factual sufficiency ofthe indictment was forfeited by defendant's guilty plea (see People v Cruz, 104 AD3d1022, 1024 [2013]).
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.