Opinion
14216.
Decided and Entered: January 29, 2004.
Appeal from a judgment of the County Court of Saratoga County (Scarano Jr., J.), rendered August 31, 2001, convicting defendant upon her plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Stephen G. Court, Saratoga Springs, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Nicholas A. Tishler of counsel), for respondent.
Before: Peters, J.P., Spain, Mugglin, Rose and Kane, JJ.
MEMORANDUM AND ORDER
Defendant was charged in a six-count indictment with various drug-related crimes. In full satisfaction of the indictment, defendant pleaded guilty to the first count, after it was amended and reduced, of attempted criminal sale of a controlled substance in the third degree. As part of the plea agreement, defendant agreed to waive her right to appeal and to be sentenced to 2 to 7 years in prison. County Court imposed the agreed-upon sentence and recommended, at defendant's request, that she be afforded entry into the ASAT and CASAT programs for substance abuse. Defendant now appeals.
Initially, defendant's challenge to the factual sufficiency of the plea allocution is precluded by her waiver of the right to appeal as well as her failure to move to withdraw the plea or vacate the judgment of conviction (see People v. Wehrle, 308 A.D.2d 660, 661). Inasmuch as defendant did not make any statements inconsistent with her guilt which negated an essential element of the crime, the exception to the preservation rule is inapplicable (see People v. Lopez, 71 N.Y.2d 662, 666; People v Cabezas, 307 A.D.2d 594, 595, lv denied 100 N.Y.2d 618). Likewise, defendant's challenge to the severity of the sentence is also encompassed by her voluntary waiver of the right to appeal (see People v. Anderson, 304 A.D.2d 975, 976, lv denied 100 N.Y.2d 578; People v. Samuels, 304 A.D.2d 913, lv denied 100 N.Y.2d 586).
Peters, J.P., Spain, Rose and Kane, JJ., concur.
ORDERED that the judgment is affirmed.