Opinion
2014-02-13
The PEOPLE of the State of New York, Respondent, v. Pedro HERNANDEZ, Appellant.
Abbie Goldbas, Utica, for appellant. William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), for respondent.
Abbie Goldbas, Utica, for appellant. William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, ROSE and EGAN JR., JJ.
GARRY, J.
Appeal from a judgment of the County Court of Madison County (DiStefano, J.), rendered January 4, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.
Defendant collided with a State Police vehicle on the New York State Thruway in Madison County and, in the inquiry that ensued, cocaine and marihuana were found in his possession. He ultimately pleaded guilty to one count of criminal possession of a controlled substance in the second degree and waived his right to appeal. County Court sentenced him, as agreed, to a prison term of four years to be followed by postrelease supervision of five years. Defendant now appeals, and we affirm.
During the plea colloquy, defendant stated that he understood the terms of the plea agreement, which included the requirement that he waive his right to appeal the conviction and sentence. He was then advised at sentencing with regard to the separate and distinct rights he was forfeiting by waiving his right to appeal, discussed the issue with counsel to his satisfaction, and both executed a written appeal waiver and professed his continuing willingness to do so if the agreed-upon sentence was imposed. Under these circumstances, we conclude that defendant knowingly, voluntarily and intelligently waived his right to appeal ( see People v. Sylvan, 107 A.D.3d 1044, 1045, 968 N.Y.S.2d 628 [2013]; People v. Collins, 53 A.D.3d 932, 933, 861 N.Y.S.2d 533 [2008], lv. denied11 N.Y.3d 831, 868 N.Y.S.2d 605, 897 N.E.2d 1089 [2008] ).
Defendant's further contention that his guilty plea was not knowingly, voluntarily and intelligently entered is unpreserved, inasmuch as the record does not indicate that he moved to withdraw his guilty plea or to vacate the judgment of conviction ( see People v. Gruber, 108 A.D.3d 877, 877, 969 N.Y.S.2d 586 [2013], lv. denied22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552 [2013]; People v. Stroman, 107 A.D.3d 1023, 1025, 967 N.Y.S.2d 202 [2013], lv. denied21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] ). He further made no statements during the plea colloquy that called either his guilt or the voluntariness of his plea into question and, accordingly, this case does not fall within the narrow exception to the preservation doctrine ( see id.).
Defendant's remaining argument, that the sentence imposed was harsh and excessive, is precluded by his valid appeal waiver ( see People v. Sylvan, 107 A.D.3d at 1045, 968 N.Y.S.2d 628).
ORDERED that the judgment is affirmed. McCARTHY, J.P., ROSE and EGAN JR., JJ., concur.