| People v Henion |
| 2013 NY Slip Op 07076 [110 AD3d 1349] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWilliam Henion, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (David Berson of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered January 18, 2011, convicting defendant upon his plea of guilty of the crimeof reckless endangerment in the first degree (two counts).
Defendant waived indictment and was charged in two superior court informationswith reckless endangerment in the first degree, stemming from a high speed chaseinvolving multiple police agencies at speeds in excess of 110 miles per hour through theTowns of Fallsburg and Mamakating in Sullivan County. Pursuant to a negotiated pleaagreement, defendant pleaded guilty to both crimes in exchange for a sentence of sixmonths in jail followed by five years of probation, which included a three- to six-monthinpatient treatment program. Defendant also waived his right to appeal as part of the pleaagreement. Thereafter, defendant absconded from the treatment program and failed toappear for sentencing, after which County Court imposed an enhanced sentence of2
We affirm. Initially, to the extent that defendant contends that his waiver of appealwas invalid, we find this argument unavailing. While County Court should have beenmore thorough in distinguishing the right to appeal from other rights relinquished duringthe allocution, the written waiver executed by defendant and his counsel and approved bythe court also [*2]acknowledged defendant's right toappeal, indicated that he had discussed the waiver and its consequences with counsel,and affirmed that he was voluntarily waiving the right (see People v White, 96 AD3d1299, 1299-1300 [2012], lv denied 19 NY3d 1029 [2012]; People v McCaskill, 76 AD3d751, 752 [2010]). To the extent that the waiver encompassed any nonwaivableissues, they are simply excluded from its scope and the balance of the waiver remainsvalid (see People v Gruber,108 AD3d 877, 878 [2013]; People v Neal, 56 AD3d 1211, 1211 [2008], lvdenied 12 NY3d 761 [2009]).
Defendant's challenge to the voluntariness of his plea and his argument that he wasdenied the effective assistance of counsel are unpreserved for our review inasmuch as therecord does not reflect that he moved to withdraw his plea or vacate the judgment ofconviction (see People vSylvan, 107 AD3d 1044, 1045-1046 [2013]; People v Ladieu, 105 AD3d 1265, 1265-1266 [2013],lv denied 21 NY3d 1017 [2013]). As nothing in the record casts doubt upondefendant's guilt, the narrow exception to the preservation requirement is not implicatedhere (see People v Cruz,104 AD3d 1022, 1023 [2013]; People v Revette, 102 AD3d 1065, 1065-1066 [2013]).Likewise, defendant's contention that he should have been allowed the opportunity towithdraw his plea prior to the imposition of an enhanced sentence has not been preservedby his failure to object to the enhanced sentence or move to withdraw his plea (see People v Gilbert, 106AD3d 1133, 1133 [2013]; People v DePalma, 99 AD3d 1116, 1116-1117 [2012],lv denied 20 NY3d 1010 [2013]).
Defendant's remaining contentions have been considered and found to be withoutmerit.
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.