| People v Bonfante |
| 2018 NY Slip Op 08579 [167 AD3d 1160] |
| December 13, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nicholas F. Bonfante, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Michael Muia, Law Intern), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered May 12, 2016, convicting defendant upon his plea of guilty of the crime of attemptedburglary in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with attempted burglary in the second degree. Defendant thereafter pleaded guiltyto the charged crime and waived his right to appeal. In accordance with the terms of the pleaagreement, County Court sentenced him to a prison term of five years, followed by five years ofpostrelease supervision. Defendant appeals.
To the extent that defendant contends that his plea was not knowing, intelligent andvoluntary, this claim survives his uncontested appeal waiver but is unpreserved for our review asthe record does not reflect that he made an appropriate postallocution motion (see People v White, 164 AD3d959, 959 [2018]; People vTucker, 161 AD3d 1481, 1482 [2018], lv denied 31 NY3d 1153 [2018]). As fordefendant's ineffective assistance of counsel claim, it survives his appeal waiver to the extent thatit impacts upon the voluntariness of his plea but is likewise not preserved for our review (see People v Gorman, 165 AD3d1349, 1350 [2018]; People vJackson, 163 AD3d 1360, 1360-1361 [2018]). Moreover, given that "defendant did notmake any statements during his plea allocution that would cast doubt on his guilt or negate anelement of the [charged] crime," the narrow exception to the preservation rule does not apply (People v Agrusti, 123 AD3d 1158,1158 [2014], lv denied 26 NY3d 1142 [2016]; see People v Franklin, 146 AD3d 1082, 1084 [2017], lvdenied 29 NY3d 948 [2017]).
Garry, P.J., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.