| People v Jones |
| 2014 NY Slip Op 04364 [118 AD3d 1354] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJeremiah Jones, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.),rendered February 1, 2011. The judgment convicted defendant, upon his plea of guilty,of burglary in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guiltyplea of two counts of burglary in the third degree (Penal Law § 140.20). Weagree with defendant that he did not knowingly waive his right to appeal. "Although therecord establishes that defendant executed a written waiver of the right to appeal, therewas no colloquy between County Court and defendant regarding the waiver of the rightto appeal to ensure that it was knowingly, voluntarily and intelligently entered" (People v Carno, 101 AD3d1663, 1664 [2012], lv denied 20 NY3d 1060 [2013]; see People v Briggs, 115 AD3d1245, 1246 [2014]). Although defendant's contention that the plea was notknowingly, voluntarily, and intelligently entered thus is not precluded by the invalidwaiver, he failed to preserve that contention for our review inasmuch as he did not moveto withdraw the plea or to vacate the judgment of conviction (see People v Robinson, 112AD3d 1349, 1349 [2013]). Contrary to his contention, "this case does not fall withinthe rare exception to the preservation requirement because nothing in the plea allocutioncalls into question the voluntariness of the plea or casts 'significant doubt' upon his guilt"(id. at 1349, quoting People v Lopez, 71 NY2d 662, 666 [1988]). Thecourt did not abuse its discretion in terminating defendant from the drug treatmentprogram after he violated the conditions of the program (see CPL 216.05 [9] [c];People v Dawley, 96 AD3d1108, 1109 [2012], lv denied 19 NY3d 1025 [2012]). The sentence is notunduly harsh or severe. Present—Centra, J.P., Lindley, Sconiers, Valentino andDeJoseph, JJ.