Opinion
108772
12-13-2018
The PEOPLE of the State of New York, Respondent, v. Nicholas F. BONFANTE, Appellant.
Brian M. Quinn, Albany, for appellant. Karen A. Heggen, District Attorney, Ballston Spa (Michael Muia, Law Intern), for respondent.
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Michael Muia, Law Intern), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered May 12, 2016, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with attempted burglary in the second degree. Defendant thereafter pleaded guilty to the charged crime and waived his right to appeal. In accordance with the terms of the plea agreement, County Court sentenced him to a prison term of five years, followed by five years of postrelease supervision. Defendant appeals.
To the extent that defendant contends that his plea was not knowing, intelligent and voluntary, this claim survives his uncontested appeal waiver but is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. White, 164 A.D.3d 959, 959, 82 N.Y.S.3d 247 [2018] ; People v. Tucker, 161 A.D.3d 1481, 1482, 78 N.Y.S.3d 450 [2018], lv denied 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ). As for defendant's ineffective assistance of counsel claim, it survives his appeal waiver to the extent that it impacts upon the voluntariness of his plea but is likewise not preserved for our review (see People v. Gorman, 165 A.D.3d 1349, 1350, 85 N.Y.S.3d 614 [2018] ; People v. Jackson, 163 A.D.3d 1360, 1360–1361, 81 N.Y.S.3d 672 [2018] ). Moreover, given that "defendant did not make any statements during his plea allocution that would cast doubt on his guilt or negate an element of the [charged] crime," the narrow exception to the preservation rule does not apply ( People v. Agrusti, 123 A.D.3d 1158, 1158, 996 N.Y.S.2d 792 [2014], lv denied 26 N.Y.3d 1142, 32 N.Y.S.3d 56, 51 N.E.3d 567 [2016] ; see People v. Franklin, 146 A.D.3d 1082, 1084, 45 N.Y.S.3d 635 [2017], lvs denied 29 N.Y.3d 946, 948, 54 N.Y.S.3d 377, 379, 76 N.E.3d 1080, 1082 [2017] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Lynch, Aarons and Pritzker, JJ., concur.