Opinion
2014-06-18
The PEOPLE, etc., respondent, v. Charles McCLINTON, appellant.
Matthew Muraskin, Port Jefferson, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
Matthew Muraskin, Port Jefferson, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Toomey, J.), rendered December 14, 2012, convicting him of attempted criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
As the People correctly concede, the defendant's waiver of his right to appeal was not knowing, voluntary, and intelligent ( see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
However, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review since the defendant did not move to withdraw his plea on this ground prior to sentencing ( see CPL 220.60 [3]; People v. Clarke, 93 N.Y.2d 904, 690 N.Y.S.2d 501, 712 N.E.2d 668;People v. Lujan, 114 A.D.3d 963, 980 N.Y.S.2d 815;People v. Ovalle, 112 A.D.3d 971, 977 N.Y.S.2d 401). Furthermore, contrary to the defendant's contention, the exception to the preservation requirement does not apply here, since the defendant's plea allocution did not cast significant doubt upon 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. DICKERSON, J.P., LEVENTHAL, HALL and MILLER, JJ., concur.