Opinion
3753.
Decided May 27, 2004.
Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered September 28, 2000, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree, and sentencing him to a term of 17½ years to life, unanimously affirmed.
Laura R. Johnson, The Legal Aid Society, New York (Kevin F. Casey of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Benjamin Cheeks of counsel), for respondent.
Before: Nardelli, J.P., Lerner, Friedman, Marlow, Gonzalez, JJ.
Since defendant did not move to withdraw his plea or vacate the judgment, his challenge to the voluntariness of his plea is unpreserved and we decline to review it in the interest of justice. The exception to the preservation requirement does not apply since defendant's factual recitation did not negate an essential element of the crime pleaded to, or cast significant doubt upon his guilt, or otherwise call into question the voluntariness of his plea ( see People v. Toxey, 86 N.Y.2d 725; People v. Lopez, 71 N.Y.2d 662). We note that in his allocution, defendant expressly acknowledged that he had the intent and capacity to complete the unconsummated drug sale ( see Penal Law 220.00; People v. Mike, 92 N.Y.2d 996). The record establishes that the plea was knowing, intelligent and voluntary. To the extent that defendant's plea was linked to the dismissal of charges against his relatives, the plea met constitutional standards for that type of arrangement ( see People v. Fiumefreddo, 82 N.Y.2d 536).
Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim ( People v. Hidalgo, 91 N.Y.2d 733). Therefore, defendant "elect[ed] to foreclose review of [his] negotiated sentence" ( People v. Seaberg, 74 N.Y.2d 1, 10). In any event, were we to find that defendant did not validly waive his right to appeal, we would perceive no basis for reducing the sentence or directing that it be served concurrently with defendant's Queens County sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.