Opinion
2011-09-29
The PEOPLE of the State of New York, Respondent,v.Nathan BENSON, Appellant.
Theresa M. Suozzi, Saratoga Springs, for appellant.Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.Before: PETERS, J.P., ROSE, LAHTINEN, McCARTHY and GARRY, JJ.
LAHTINEN, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered November 19, 2010, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.
In satisfaction of an amended indictment, defendant pleaded guilty to sexual abuse in the first degree and waived his right to appeal. County Court thereafter sentenced him to the agreed-upon term of imprisonment of two years, to be followed by 10 years of postrelease supervision. Defendant now appeals.
We affirm. To the extent that defendant challenges the validity of his appeal waiver, the record demonstrates that County Court distinguished the right to appeal from the rights automatically forfeited by his guilty plea, after which defendant acknowledged his understanding of the waiver and, after being provided time to discuss the waiver with counsel, executed a written waiver in open court. Under these circumstances, we find that defendant validly waived his right to appeal ( see People v. Jean–Francois, 82 A.D.3d 1366, 1366, 918 N.Y.S.2d 389 [2011], lv. denied 17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011]; People v. Thomas, 71 A.D.3d 1231, 1231–1232, 896 N.Y.S.2d 264 [2010], lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ).
Defendant's challenge to the voluntariness of his guilty plea is unpreserved for our review in light of defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Hill, 81 A.D.3d 1040, 1040, 916 N.Y.S.2d 300 [2011]; People v. MacDonald, 77 A.D.3d 989, 989, 908 N.Y.S.2d 464 [2010], lv. denied
15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ). Moreover, the narrow exception to the preservation rule is inapplicable here, inasmuch as defendant did not make any statements during the plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea ( see People v. Smith, 81 A.D.3d 1034, 1035, 916 N.Y.S.2d 293 [2011], lv. denied 16 N.Y.3d 899, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011]; People v. Caldwell, 80 A.D.3d 998, 998, 914 N.Y.S.2d 688 [2011], lv. denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ).
Defendant's contention that he was denied the effective assistance of counsel, while not precluded by his appeal waiver to the extent that it relates to the voluntariness of his plea, is similarly unpreserved for our review due to his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Pendelton, 81 A.D.3d 1037, 1038, 916 N.Y.S.2d 297 [2011], lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011]; People v. Fiske, 68 A.D.3d 1149, 1150, 889 N.Y.S.2d 746 [2009], lv. denied 14 N.Y.3d 800, 899 N.Y.S.2d 134, 925 N.E.2d 938 [2010] ). Finally, defendant's challenge to his sentence, including the denial of youthful offender status, is barred by his waiver of the right to appeal ( see People v. Rosseter, 62 A.D.3d 1093, 1095, 878 N.Y.S.2d 512 [2009] ).
ORDERED that the judgment is affirmed.
PETERS, J.P., ROSE, McCARTHY and GARRY, JJ., concur.