| People v Ferguson |
| 2014 NY Slip Op 00528 [113 AD3d 874] |
| January 29, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jason Ferguson, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and AnnBordley of counsel; Robert Ho on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gubbay, J.), rendered October 12, 2011, convicting him of criminal possession of aforged instrument in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant validly waived his right to appeal. At the plea allocution, the SupremeCourt sufficiently advised the defendant of the nature of the right to appeal, and therecord establishes that the defendant knowingly, voluntarily, and intelligently waived thatright (see People v Ramos,7 NY3d 737 [2006]; cf.People v Bradshaw, 18 NY3d 257 [2011]).
Although a claim that a plea of guilty was not knowing, voluntary, and intelligentsurvives a valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1,10 [1989]; People vPersaud, 109 AD3d 626 [2013], lv denied 22 NY3d 958 [2013]), thedefendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review, since he did not move towithdraw his plea on this ground prior to the imposition of sentence (see CPL220.60 [3]; People v Clarke, 93 NY2d 904, 906 [1999]; People v Devodier, 102 AD3d884 [2013]). Moreover, the exception to the preservation requirement does not applyhere, since the defendant's recitation of the facts underlying the crime to which hepleaded guilty did not clearly cast significant doubt on his guilt, negate an essentialelement of the crime, or call into question the voluntariness of the plea (see People vLopez, 71 NY2d 662, 666 [1988]). In any event, the defendant's contention iswithout merit. The defendant's plea agreement provided, among other things, that he wasto complete drug treatment. Thereafter, the parties and the Supreme Court learned thatthe defendant was the subject of an outstanding, pre-existing warrant from the State ofColorado which essentially prohibited the court from releasing the defendant to drugtreatment. While the alleged impossibility of the defendant's completion of drugtreatment may have required that he be furnished with an opportunity to withdraw hisplea, the record nevertheless demonstrates that the defendant subjected himself to anenhanced sentence by violating other conditions of the plea agreement (see People vEscalona, 300 AD2d 505 [2002]).[*2]
The defendant's remaining contentions arewithout merit. Skelos, J.P., Leventhal, Lott and Cohen, JJ., concur.