| People v Busreth |
| 2018 NY Slip Op 08383 [167 AD3d 1089] |
| December 6, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gabriel N. Busreth, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered April 12, 2017, convicting defendant upon his plea of guilty of the crime of attemptedrobbery in the second degree.
On May 30, 2016 at approximately 5:15 a.m., defendant entered the Cobble Pond Farmsconvenience store in the Town of Malta, Saratoga County, approached the counter and asked theclerk for a pack of cigarettes. When the clerk turned around, defendant walked behind thecounter, confronted the clerk and demanded money while his hands were concealed in hispockets. After taking money from the cash register drawer, he left the store. As a result,defendant was charged in an indictment with robbery in the second degree. In satisfactionthereof, defendant pleaded guilty to attempted robbery in the second degree and waived his rightto appeal, both orally and in writing. In accordance with the terms of the plea agreement, he wassentenced as a second felony offender to three years in prison and five years of postreleasesupervision. Defendant now appeals.
Initially, defendant challenges the sufficiency of the evidence before the grand jury, arguingthat there was no proof that he displayed a weapon or used force. His guilty plea, however,forecloses him from raising this challenge (see People v Wilburn, 158 AD3d 894, 895-894 [2018], lvdenied 31 NY3d 1123 [2018]; People v Williams, 25 AD3d 927, 929 [2006], lv denied 6NY3d 840 [2006]). Moreover, contrary to defendant's contention, the grand jury proceeding wasnot jurisdictionally defective as the minutes do not disclose any prosecutorial wrongdoing,fraudulent conduct or other prejudicial error in the People's presentation of evidence that wouldwarrant dismissal of the indictment (see CPL 210.35 [5]; People v Huston, 88NY2d 400, 409 [1996]; People vMesko, 150 AD3d 1412, 1415 [2017], lv denied 29 NY3d 1131 [2017]). Hefurther asserts that his guilty plea was not knowing, voluntary and intelligent because he waspressured into entering it by the People's misrepresentations that he used force and displayed aweapon, as well as the potential 15-year prison term that he faced if convicted after trial.Although not precluded by his uncontested waiver of the right to appeal, this claim isunpreserved as the record does not disclose that defendant made an appropriate postallocutionmotion (see People v Norton, 164AD3d 1502, 1503 [2018]; People vWhite, 164 AD3d 959, 959 [2018]; see also People v Harris, 139 AD3d 1244, 1245-1246 [2016], lvdenied 28 NY3d 930 [2016]). Moreover, the narrow exception to the preservation rule isinapplicable as defendant did not make statements during the plea colloquy that cast doubt on hisguilt or called into question the voluntariness of his plea (see People v Norton, 164 AD3dat 1503; People v White, 164 AD3d at 959). Defendant's further claim that he was deniedthe effective assistance of counsel, which purportedly resulted in his entry of an involuntaryguilty plea, is also unpreserved for the same reason (see People v Norton, 164 AD3d at1503; People v White, 164 AD3d at 960).
McCarthy, J.P., Lynch, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.