| People v Joubert |
| 2017 NY Slip Op 08052 [155 AD3d 1255] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Toby Joubert, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered October 20, 2015, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree.
Defendant, a prison inmate, was indicted and charged with criminal possession of a weaponin the third degree and promoting prison contraband in the first degree after a razor-type weaponwas found in his possession during his confinement in a detention facility. Pursuant to a pleaagreement requiring him to execute a written waiver of appeal, defendant subsequently pleadedguilty to attempted promoting prison contraband in the first degree in full satisfaction of theindictment. Consistent with the terms of the plea agreement, County Court sentenced defendantas a second felony offender to a prison term of 1
We affirm. Defendant's sole contention on appeal is that his guilty plea was not knowing,intelligent and voluntary because County Court failed to inquire whether he was under theinfluence of drugs or alcohol during the plea allocution. While defendant's challenge to thevoluntariness of his guilty plea survives the unchallenged waiver of appeal (see e.g. People v Dubois, 150 AD3d1562, 1563 [2017]; People vDavis, 150 AD3d 1396, 1397 [2017]), defendant failed to preserve this claim for ourreview as the record does not disclose that he made an appropriate postallocution motion(see CPL 220.60 [3]; People vMillard, 147 AD3d 1155, 1156 [2017], lv denied 29 NY3d 999 [2017]; People v Buie, 128 AD3d 1281,1281 [2015]). [*2]Moreover, defendant made no statementsduring the plea allocution that negated an element of the crime or otherwise called into doubt hisguilt or the voluntariness of his plea so as to trigger the narrow exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Beverly, 140 AD3d 1400,1401 [2016], lv denied 28 NY3d 927 [2016]). Were we to address his claim, we wouldfind that the record is devoid of any suggestion that defendant was under the influence of drugsor alcohol at the time of his allocution and that the plea was therefore knowingly, voluntarily andintelligently entered with the aid of meaningful representation (see People v Millard, 147AD3d at 1156; People v Buie, 128 AD3d at 1281).
Garry, J.P., Devine, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.