Opinion
2014-01-30
The PEOPLE of the State of New York, Respondent, v. Jahad GRAVES, 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 ROSE, JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered January 11, 2007, convicting defendant upon his plea of guilty of the crime of assault in the first degree.
Defendant pleaded guilty to assault in the first degree in full satisfaction of a six-count indictment and waived his right to appeal. County Court thereafter imposed the agreed-upon sentence of 15 years in prison, to be followed by five years of postrelease supervision, with the sentence to be served consecutively to a sentence he was already serving. Defendant appeals.
We affirm. Contrary to his argument, we find that defendant knowingly, voluntarily and intelligently waived his right to appeal his conviction and sentence. The record reflects that County Court distinguished the right to appeal from the rights forfeited by the guilty plea and defendant acknowledged that he had discussed the waiver with counsel and understood its consequences ( see People v. Brown, 101 A.D.3d 1267, 1268, 956 N.Y.S.2d 618 [2012], lv. denied21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013]; People v. Shaver, 92 A.D.3d 978, 979, 938 N.Y.S.2d 358 [2012], lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 652, 968 N.E.2d 1008 [2012] ).
Defendant's contention that his plea was not entered into voluntarily, which survives his appeal waiver, is not preserved for our review, inasmuch as the record indicates that he has failed to either move to withdraw his plea or vacate the judgment of conviction ( see People v. Revette, 102 A.D.3d 1065, 1065–1066, 958 N.Y.S.2d 805 [2013]; People v. Whitfield, 94 A.D.3d 1238, 1238, 94 A.D.3d 1238 [2012] ). Moreover, the narrow exception to the preservation requirement is inapplicable. Although defendant indicated during the plea allocution that he was intoxicated at the time of the crime, County Court satisfied its duty to inquire further by advising defendant that an issue regarding criminal intent may have been raised and confirming that defendant had discussed the intoxication defense with counsel and wanted to proceed by entering a guilty plea ( see People v. Mead, 64 A.D.3d 814, 815, 882 N.Y.S.2d 738 [2009], lv. denied14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013 [2010]; People v. Moore 270 A.D.2d 715, 716, 705 N.Y.S.2d 425 [2000], lv. denied95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240 [2000] ). Defendant's contention that he was denied the effective assistance of counsel is also unpreserved for our review in light of his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Youngblood, 107 A.D.3d 1159, 1160, 967 N.Y.S.2d 215 [2013], lv. denied21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152 [2013]; People v. Williams, 101 A.D.3d 1174, 1174, 959 N.Y.S.2d 551 [2012] ). Finally, defendant's claim that his sentence is harsh and excessive is precluded by his valid waiver of the right to appeal his conviction and sentence ( see People v. Marshall, 108 A.D.3d 884, 884, 968 N.Y.S.2d 409 [2013], lv. denied22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013]; People v. Martinez, 106 A.D.3d 1379, 1380, 966 N.Y.S.2d 562 [2013], lv. denied22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ).
ORDERED that the judgment is affirmed. LAHTINEN, GARRY and ROSE, JJ., concur.