| People v Osgood |
| 2013 NY Slip Op 07526 [111 AD3d 1029] |
| November 14, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v HenryF. Osgood, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered June 13, 2012, convicting defendant upon his plea of guilty of thecrime of criminal possession of a weapon in the third degree.
Defendant waived indictment and was charged in a superior court information withcriminal possession of a weapon in the third degree. He pleaded guilty to that charge,waived his right to appeal and, thereafter, was sentenced as a second felony offender tothe agreed-upon prison term of 2½ to 5 years. Defendant now appeals.
We affirm. Initially, we are unpersuaded by defendant's contention that the appealwaiver is invalid. The record and plea colloquy establish that defendant was informedthat the right to appeal was separate from the other rights forfeited by the guilty plea andthat his counsel adequately explained those rights before defendant executed a detailedwritten waiver in open court. Consequently, we find that defendant knowingly,voluntarily and intelligently waived his right to appeal the conviction and sentence (see People v Sylvan, 107AD3d 1044 [2013]; Peoplev Fallen, 106 AD3d 1118, 1118-1119 [2013]). Given the validity of the appealwaiver, defendant's challenges to the sufficiency of the plea and harshness of hissentence are foreclosed (see People v Sylvan, 107 AD3d at 1044). Althoughdefendant's challenge to the voluntariness of his plea survives the appeal waiver, it is notpreserved for our review as the record does not [*2]reflect that defendant moved to withdraw his plea or vacatethe judgment of conviction (seePeople v Estrada, 102 AD3d 1064, 1064-1065 [2013]). Furthermore, asdefendant did not make any statements during the plea allocution that negated anessential element of the crime or otherwise cast doubt on his guilt, the narrow exceptionto the preservation rule is inapplicable (see People v Bouton, 107 AD3d 1035, 1035 [2013], lvdenied 21 NY3d 1072 [2013]; People v Revette, 102 AD3d 1065, 1065-1066 [2013]).Similarly, defendant's ineffective assistance of counsel argument, to the extent that itsurvives the appeal waiver, is unpreserved for our review absent a motion to withdrawhis plea or vacate the judgment of conviction (see People v Bouton, 107 AD3d at1035; People v Colon, 106AD3d 1367, 1367 [2013]).
Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.