Opinion
13093
Decided and Entered: May 23, 2002.
Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered May 1, 2001, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.
Maynard, O'Connor, Smith Catalinotto L.L.P., Albany (Michael T. Snyder of counsel), for appellant.
Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
Before: Crew III, J.P., Peters, Mugglin, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
In satisfaction of an indictment charging him with criminal possession of a controlled substance in the first degree, and in satisfaction of other related charges, defendant entered a plea of guilty of criminal possession of a controlled substance in the second degree with the understanding that he would be sentenced to a prison term of 7/12 years to life. The record also reflected that, as a result of defendant's plea, his girlfriend, an unindicted coconspirator, would be permitted to plead to a crime that would allow a split sentence of imprisonment and probation. During the plea, defendant acknowledged that he was waiving the right to appeal. Sentenced in accordance with the plea bargain, defendant appeals, claiming that his plea was coerced and that his sentence is excessive.
"Although defendant's waiver of the right to appeal does not in and of itself preclude appellate review of the voluntariness of his plea * * * the issue was not preserved by a motion to withdraw the plea or to vacate the judgment of conviction * * *" (People v. Bolden, 287 A.D.2d 883, 883, lv denied 97 N.Y.2d 654 [citations omitted]). Nor does the record contain anything which would trigger the exception to the preservation rule by casting significant doubt on the voluntariness of defendant's plea (see, People v. Lopez, 71 N.Y.2d 662, 666), even in light of the special concern required by the connection between defendant's plea and the leniency accorded to his girlfriend (see, People v. Fiumefreddo, 82 N.Y.2d 536). With regard to defendant's challenge to the severity of the sentence, it is encompassed by his waiver of the right to appeal (see, People v. Hidalgo, 91 N.Y.2d 733). In any event, the record discloses neither an abuse of discretion in the sentence imposed nor any extraordinary circumstances which would warrant a modification of the sentence in the interest of justice (see, People v. O'Byrne, 262 A.D.2d 867, lv denied 93 N.Y.2d 1024).
Crew III, J.P., Peters, Rose and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.