Opinion
2011-11-23
The PEOPLE of the State of New York, Respondent,v.Timothy HALL Jr., Appellant.
Donna Maria Lasher, Youngsville, for appellant.Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.Before: SPAIN, J.P., ROSE, KAVANAGH, STEIN and GARRY, JJ.
STEIN, J.
Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered February 23, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.
Defendant pleaded guilty to burglary in the first degree in full satisfaction of a 22–count indictment filed against him in connection with a home invasion in the Town of Catskill, Greene County. Pursuant to the negotiated plea agreement, defendant was sentenced to 8 1/2 years in prison followed by five years of postrelease supervision. Defendant now appeals.
Inasmuch as defendant's claim that his guilty plea was induced by an unfulfilled promise implicates the voluntariness of his plea, it is not precluded by defendant's valid appeal waiver ( see People v. Jones, 77 A.D.3d 1178, 1178, 909 N.Y.S.2d 407 [2010], lv. denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011] ). However, defendant failed to preserve the argument by moving to withdraw his plea or vacate the judgment of conviction ( see People v. Jones, 77 A.D.3d at 1178, 909 N.Y.S.2d 407; People v. Oliver, 26 A.D.3d 675, 676, 809 N.Y.S.2d 301 [2006], lv. denied 7 N.Y.3d 760, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006]; People v. Parsons, 3 A.D.3d 790, 791, 770 N.Y.S.2d 909 [2004] ).
To the extent that defendant's claim of ineffective assistance of counsel also implicates the voluntariness of his plea, it is similarly unpreserved. Furthermore, the narrow exception to the preservation rule is inapplicable here, inasmuch as defendant did not make any statements during the plea allocution that cast significant doubt on his guilt or tended to negate a material element of the crime ( see People v. Gantt, 84 A.D.3d 1642, 1643, 923 N.Y.S.2d 916 [2011] ).
ORDERED that the judgment is affirmed.
SPAIN, J.P., ROSE, KAVANAGH and GARRY, JJ., concur.