| People v Graves |
| 2014 NY Slip Op 00542 [113 AD3d 998] |
| January 30, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JahadGraves, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered January 11, 2007, convicting defendant upon his plea of guilty of the crimeof assault in the first degree.
Defendant pleaded guilty to assault in the first degree in full satisfaction of asix-count indictment and waived his right to appeal. County Court thereafter imposed theagreed-upon sentence of 15 years in prison, to be followed by five years of postreleasesupervision, with the sentence to be served consecutively to a sentence he was alreadyserving. Defendant appeals.
We affirm. Contrary to his argument, we find that defendant knowingly, voluntarilyand intelligently waived his right to appeal his conviction and sentence. The recordreflects that County Court distinguished the right to appeal from the rights forfeited bythe guilty plea and defendant acknowledged that he had discussed the waiver withcounsel and understood its consequences (see People v Brown, 101 AD3d 1267, 1268 [2012], lvdenied 21 NY3d 1014 [2013]; People v Shaver, 92 AD3d 978, 979 [2012], lvdenied 18 NY3d 998 [2012]).
Defendant's contention that his plea was not entered into voluntarily, which surviveshis appeal waiver, is not preserved for our review, inasmuch as the record indicates thathe has failed [*2]to either move to withdraw his plea orvacate the judgment of conviction (see People v Revette, 102 AD3d 1065, 1065-1066 [2013];People v Whitfield, 94AD3d 1238, 1238 [2012]). Moreover, the narrow exception to the preservationrequirement is inapplicable. Although defendant indicated during the plea allocution thathe was intoxicated at the time of the crime, County Court satisfied its duty to inquirefurther by advising defendant that an issue regarding criminal intent may have beenraised and confirming that defendant had discussed the intoxication defense with counseland wanted to proceed by entering a guilty plea (see People v Mead, 64 AD3d 814, 815 [2009], lvdenied 14 NY3d 890 [2010]; People v Moore 270 AD2d 715, 716 [2000],lv denied 95 NY2d 800 [2000]). Defendant's contention that he was denied theeffective assistance of counsel is also unpreserved for our review in light of his failure tomove to withdraw his plea or vacate the judgment of conviction (see People v Youngblood, 107AD3d 1159, 1160 [2013], lv denied 21 NY3d 1078 [2013]; People v Williams, 101 AD3d1174, 1174 [2012]). Finally, defendant's claim that his sentence is harsh andexcessive is precluded by his valid waiver of the right to appeal his conviction andsentence (see People vMarshall, 108 AD3d 884, 884 [2013], lv denied 22 NY3d 957 [2013];People v Martinez, 106AD3d 1379, 1380 [2013], lv denied 22 NY3d 957 [2013]).
Lahtinen, Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.