| People v Hernandez |
| 2014 NY Slip Op 00910 [114 AD3d 999] |
| February 13, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v PedroHernandez, Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Madison County(DiStefano, J.), rendered January 4, 2012, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a controlled substance in the second degree.
Defendant collided with a State Police vehicle on the New York State Thruway inMadison County and, in the inquiry that ensued, cocaine and marihuana were found inhis possession. He ultimately pleaded guilty to one count of criminal possession of acontrolled substance in the second degree and waived his right to appeal. County Courtsentenced him, as agreed, to a prison term of four years to be followed by postreleasesupervision of five years. Defendant now appeals, and we affirm.
During the plea colloquy, defendant stated that he understood the terms of the pleaagreement, which included the requirement that he waive his right to appeal theconviction and sentence. He was then advised at sentencing with regard to the separateand distinct rights he was forfeiting by waiving his right to appeal, discussed the issuewith counsel to his satisfaction, and both executed a written appeal waiver and professedhis continuing willingness to do so if the agreed-upon sentence was imposed. Underthese circumstances, we conclude that defendant knowingly, voluntarily and intelligentlywaived his right to appeal (seePeople v Sylvan, 107 AD3d 1044, 1045 [2013]; People v Collins, 53 AD3d932, 933 [2008], lv denied 11 NY3d 831[*2][2008]).
Defendant's further contention that his guilty plea was not knowingly, voluntarilyand intelligently entered is unpreserved, inasmuch as the record does not indicate that hemoved to withdraw his guilty plea or to vacate the judgment of conviction (see People v Gruber, 108AD3d 877, 877 [2013], lv denied 22 NY3d 956 [2013]; People v Stroman, 107 AD3d1023, 1025 [2013], lv denied 21 NY3d 1046 [2013]). He further made nostatements during the plea colloquy that called either his guilt or the voluntariness of hisplea into question and, accordingly, this case does not fall within the narrow exception tothe preservation doctrine (see id.).
Defendant's remaining argument, that the sentence imposed was harsh and excessive,is precluded by his valid appeal waiver (see People v Sylvan, 107 AD3d at1045).
McCarthy, J.P., Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.