Opinion
No. 102792.
July 28, 2011.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered June 12, 2009, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.
Justin C. Brusgul, Voorheesville, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), for respondent.
Before: Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ.
Defendant was charged in an indictment with alcohol-related driving offenses. He was to take part in Steuben County Drug Court to address unrelated criminal charges in that county. As such, he pleaded guilty to one count of driving while intoxicated and was to be sentenced to probation, a special condition of which was to be his successful completion of Drug Court. Defendant failed to participate in Drug Court and, given County Court's unwillingness to sentence him to probation, he withdrew his guilty plea. County Court then committed to a sentence of one year in jail, and defendant successfully sought to have his guilty plea restored. County Court imposed the agreed-upon jail sentence, and defendant now appeals.
We affirm. Defendant's challenge to the sufficiency of his plea allocution is unpreserved due to his failure to move to withdraw the plea or vacate the judgment of conviction, and this case does not fall within the narrow exception to the preservation rule ( see People v Louree, 8 NY3d 541, 545; People v Thomas, 63 AD3d 642, lv denied 13 NY3d 862). In any event, defendant's second guilty plea only differed from the first in the sentence to be imposed, and County Court "validly incorporated by reference the full allocution . . . that had been conducted at the first plea proceeding" ( People v Thomas, 63 AD3d at 642; see People v Elkin, 154 AD2d 936, lv denied 74 NY2d 947).
As a final matter, we have examined and are unpersuaded by defendant's claim that the sentence imposed was harsh and excessive.
Ordered that the judgment is affirmed.