Opinion
01-12-2017
The PEOPLE of the State of New York, Respondent, v. Wilfredo DeJESUS, Appellant.
Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Kelly M. Monroe of counsel), for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Kelly M. Monroe of counsel), for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, DEVINE and MULVEY, JJ.
PETERS, P.J.Appeal from a judgment of the Supreme Court (Breslin, J.), rendered May 8, 2013 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
In satisfaction of a 12–count indictment, defendant pleaded guilty to the reduced charge of burglary in the second degree and waived his right to appeal. He was sentenced in accordance with the plea agreement to a prison term of six years followed by five years of postrelease supervision. Defendant appeals.
Defendant's sole contention is that his plea was factually deficient in that it failed to establish the element of intent necessary for a conviction of burglary in the second degree. Defendant's challenge to the factual sufficiency of the plea is precluded by his waiver of the right to appeal, which we find was knowingly, voluntarily and intelligently entered (see People v. Zakrzewski, 140 A.D.3d 1536, 1537, 33 N.Y.S.3d 782 [2016] ; People v. Devault, 124 A.D.3d 1140, 1141, 1 N.Y.S.3d 579 [2015], lv. denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ; People v. Reynolds, 117 A.D.3d 1196, 1197, 984 N.Y.S.2d 702 [2014] ). Moreover, the issue is not preserved for our review as the record does not reflect that defendant made any postallocution motion to withdraw his plea, and no statements made during the plea colloquy warrant the application of the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Butler, 134 A.D.3d 1349, 1350, 22 N.Y.S.3d 617 [2015], lvs. denied 27 N.Y.3d 962, 36 N.Y.S.3d 624, 56 N.E.3d 904 27 N.Y.3d 963, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016]; People v. Mayo, 130 A.D.3d 1099, 1100, 12 N.Y.S.3d 389 [2015] ).
ORDERED that the judgment is affirmed.
GARRY, ROSE, DEVINE and MULVEY, JJ., concur.