Opinion
June 14, 2001.
Appeal from a judgment of the Supreme Court (Sheridan, J.), rendered January 29, 1997 in Albany County, convicting defendant upon his plea of guilty of the crime of assault in the first degree.
Theresa M. Suozzi, Albany, for appellant.
Paul A. Clyne, District Attorney (Kimberly A. Mariani of counsel), Albany, for respondent.
Before: Cardona, P.J., Crew III, Spain, Mugglin and Rose, JJ.
MEMORANDUM AND ORDER
Defendant pleaded guilty to the crime of assault in the first degree in satisfaction of a five-count indictment accusing him and a codefendant of, inter alia, causing serious physical injury in the course of a robbery. Pursuant to the negotiated plea agreement, defendant waived his right to appeal. Supreme Court thereafter sentenced defendant to the agreed-upon prison term of 6½ to 13 years. Defendant, on this appeal, contends that his plea was not knowing and voluntary, that he was denied the effective assistance of counsel and the sentence is harsh and excessive.
We affirm. Initially, although defendant's waiver of the right to appeal does not in and of itself preclude appellate review of the voluntariness of his plea (see, People v. Conyers, 227 A.D.2d 793, lv denied 88 N.Y.2d 982), his failure to move either to withdraw the plea or to vacate the judgment of conviction generally precludes review of the sufficiency of the plea allocution (see, People v. Lopez, 71 N.Y.2d 662, 665). The narrow exception to the preservation rule does not apply here inasmuch as defendant's factual recitation during the allocution did not cast significant doubt on his guilt by negating an essential element of the crime (see, id., at 666; People v. Vonderchek, 245 A.D.2d 979, 980,lv denied 91 N.Y.2d 945). Furthermore, the transcript of the plea proceedings belies defendant's claim that his understanding of English was insufficient to permit him to enter a knowing and voluntary plea (see,People v. Avila, 271 A.D.2d 541, lv denied 95 N.Y.2d 853).
Next, to the extent that defendant's claims of ineffective assistance of counsel are preserved for our review, they are lacking in merit. Inasmuch as the record does not support defendant's claim regarding his inability to understand English, there is no basis for his claim that defense counsel should have requested an interpreter. The remainder of defendant's ineffective assistance of counsel claims are based on facts outside the record (see, People v. Gonzalez, 206 A.D.2d 669).
Finally, defendant's harsh and excessive sentence contention is encompassed by his waiver of the right to appeal (see, People v. Hidalgo, 91 N.Y.2d 733) and, in any event, lacks merit. Defendant, who was on probation when he committed the instant offense, was allowed to plead guilty to one of the least serious counts of the indictment and agreed to the sentence imposed, which is less than the harshest possible sentence. Accordingly, we find no reason to disturb the sentence imposed.
Crew III, Spain, Mugglin and Rose, JJ., concur.
ORDERED that the judgment is affirmed.