Opinion
2014-01-29
The PEOPLE, etc., respondent, v. Jason FERGUSON, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel; Robert Ho on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel; Robert Ho on the brief), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gubbay, J.), rendered October 12, 2011, convicting him of criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant validly waived his right to appeal. At the plea allocution, the Supreme Court sufficiently advised the defendant of the nature of the right to appeal, and the record establishes that the defendant knowingly, voluntarily, and intelligently waived that right ( see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222; cf. People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645).
Although a claim that a plea of guilty was not knowing, voluntary, and intelligent survives a valid waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Persaud, 109 A.D.3d 626, 970 N.Y.S.2d 324, lv. denied22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554), the defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence ( seeCPL 220.60[3]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668; People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220). Moreover, the exception to the preservation requirement does not apply here, since the defendant's recitation of the facts underlying the crime to which he pleaded guilty did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). In any event, the defendant's contention is without merit. The defendant's plea agreement provided, among other things, that he was to complete drug treatment. Thereafter, the parties and the Supreme Court learned that the defendant was the subject of an outstanding, pre-existing warrant from the State of Colorado which essentially prohibited the court from releasing the defendant to drug treatment. While the alleged impossibility of the defendant's completion of drug treatment may have required that he be furnished with an opportunity to withdraw his plea, the record nevertheless demonstrates that the defendant subjected himself to an enhanced sentence by violating other conditions of the plea agreement ( see People v. Escalona, 300 A.D.2d 505, 751 N.Y.S.2d 540).
The defendant's remaining contentions are without merit.