Opinion
14368.
Decided and Entered: January 29, 2004.
Appeal from a judgment of the Supreme Court (Bruhn, J.), rendered August 29, 2002 in Ulster County, convicting defendant upon his plea of guilty of the crime of promoting prison contraband in the first degree.
Mark Diamond, Albany, for appellant.
Donald A. Williams, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Mercure, J.P., Spain, Carpinello, Mugglin and Lahtinen, JJ.
MEMORANDUM AND ORDER
Defendant, an inmate, was found to be in possession of a piece of metal in the correctional facility where he was incarcerated and was charged with promoting prison contraband in the first degree. He pleaded guilty to this charge and was to be sentenced, as part of the plea agreement, to a prison term of 2 to 4 years, to run consecutively to the sentence he was then serving. During the plea proceedings, defendant indicated that he did not wish to be present in court for sentencing and agreed that his attorney would appear on his behalf. Defendant was thereafter sentenced in absentia as a second felony offender to the agreed-upon sentence. He now appeals.
Initially, given that defendant did not move to withdraw the plea or vacate the judgment of conviction, he is precluded from challenging the voluntariness of the plea (see People v. Ward, A.D.3d 768 N.Y.S.2d 850 [2003]; People v. Thomas, 307 A.D.2d 592, 592, lv denied 100 N.Y.2d 625). Insofar as the plea colloquy does not indicate that defendant's factual recitation casts significant doubt upon his guilt, the exception to the preservation rule is inapplicable (see People v. Lopez, 71 N.Y.2d 662, 666; People v. Camp, 302 A.D.2d 629, 630, lv denied 100 N.Y.2d 593). In any event, were we to review the voluntariness of the plea or the adequacy of the allocution, we would find defendant's claims to be without merit (see People v. Teague, 295 A.D.2d 813, 814, lv denied 98 N.Y.2d 772). The transcript of the plea proceedings discloses that Supreme Court sufficiently advised defendant of the consequences of pleading guilty and defendant responded that he understood them, but nevertheless wished to plead guilty. He then admitted that, while in prison, he possessed a piece of metal which could be used to inflict harm.
Defendant further claims that he was illegally sentenced in absentia. The record, however, reveals that defendant intentionally chose not to attend the sentencing hearing. Therefore, we find that defendant waived his right to be present (see People v. Bennett, 162 A.D.2d 825, 825-826). Likewise, defendant's failure to move to vacate the sentence precludes him from asserting lack of compliance with CPL 400.21 and that he was illegally sentenced as a second felony offender (see People v. Proctor, 79 N.Y.2d 992, 994; People v. Pelligrino, 60 N.Y.2d 636, 637). In any event, the consecutive sentence, which appears to be at the heart of defendant's claim, was mandated by law given that defendant was serving an undischarged term of imprisonment at the time that he was sentenced (see Penal Law § 70.25 [2-a]).
Mercure, J.P., Spain, Mugglin and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.