Opinion
2013-01-31
The PEOPLE of the State of New York, Respondent, v. Luis ESTRADA, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and EGAN JR., JJ.
GARRY, J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered December 2, 2011, which resentenced defendant following his conviction upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant waived indictment and pleaded guilty to a superior court information charging him with attempted criminal sale of a controlled substance in the third degree. Pursuant to the plea agreement, defendant waived his right to appeal and County Court agreed to sentence him to no more than five years in prison followed by three years of postrelease supervision, provided that he abide by the terms of his release to probation supervision pending sentencing. Defendant was ultimately sentenced to a prison term of five years followed by three years of postrelease supervision. Defendant appeals.
We affirm. Although defendant's argument that his plea was not voluntary is not precluded by his waiver of appeal, the record does not reflect that defendant preserved this argument by making a motion to withdraw the plea or vacate the judgment of conviction ( see People v. Whitfield, 94 A.D.3d 1238, 1238, 941 N.Y.S.2d 893 [2012];People v. Jeske, 55 A.D.3d 1057, 1058, 865 N.Y.S.2d 750 [2008],lv. denied11 N.Y.3d 898, 873 N.Y.S.2d 274, 901 N.E.2d 768 [2008] ). As nothing in the plea colloquy casts doubt upon defendant's guilt, the narrow exception to the preservation requirement is not applicable ( see People v. Abrams, 75 A.D.3d 927, 928, 904 N.Y.S.2d 822 [2010],lv. denied15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010];People v. McKeney, 45 A.D.3d 974, 975, 844 N.Y.S.2d 516 [2007];People v. Rogers, 15 A.D.3d 682, 682–683, 788 N.Y.S.2d 716 [2005] ). Finally, defendant's claim that the sentence imposed was harsh and excessive is foreclosed by his valid waiver of appeal ( see People v. Stoff, 74 A.D.3d 1640, 1641, 904 N.Y.S.2d 794 [2010],lv. denied15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904 [2010];People v. Walley, 63 A.D.3d 1284, 1286, 881 N.Y.S.2d 203 [2009];People v. Rogers, 15 A.D.3d at 683, 788 N.Y.S.2d 716).
ORDERED that the judgment is affirmed.