Opinion
2012-11-15
The PEOPLE of the State of New York, Respondent, v. Gregory FRANK, Appellant.
Eugene P. Grimmick, Troy, for appellant. Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), for respondent.
Eugene P. Grimmick, Troy, for appellant. Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), for respondent.
Before: MERCURE, J.P., MALONE JR., KAVANAGH, STEIN and GARRY, JJ.
STEIN, J.
Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered April 2, 2010, convicting defendant upon his plea of guilty of the crimes of attempted burglary in the second degree (two counts) and criminal possession of stolen property in the fifth degree (two counts).
Defendant and a codefendant were charged in a 23–count indictment with various crimes stemming from a number of burglaries in Rensselaer County. In satisfaction thereof, defendant pleaded guilty to two counts of attempted burglary in the second degree and two counts of criminal possession of stolen property in the fifth degree, and waived his right to appeal. In accordance with the plea agreement, he was sentenced to 5 1/2 years in prison, to be followed by five years of postrelease supervision, on the attempted burglary convictions and one year in jail on the criminal possession convictions, which sentences were to run concurrently. Defendant appeals.
Defendant's sole argument is that his plea of guilty to one of the counts of attempted burglary in the second degree was factually deficient, rendering the entire guilty plea a nullity and requiring reversal of the judgment of conviction. Specifically, defendant claims that the plea allocution he made with respect to the first count of the indictment failed to establish the element of intent, which is a necessary element of the crime of attempted burglary in the second degree ( seePenal Law §§ 110.00, 140.25[2] ). Initially, we note that defendant's valid waiver of the right to appeal precludes him from challenging the factual sufficiency of the plea allocution ( see People v. Rose, 41 A.D.3d 1033, 1034, 837 N.Y.S.2d 440 [2007],lv. denied9 N.Y.3d 926, 844 N.Y.S.2d 180, 875 N.E.2d 899 [2007];People v. Bagley, 34 A.D.3d 992, 992, 824 N.Y.S.2d 457 [2006],lv. denied8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007] ). Moreover, this issue has not been preserved for our review inasmuch as the record before us fails to indicate that defendant moved to withdraw his guilty plea or vacate the judgment of conviction ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];People v. Leszczynski, 96 A.D.3d 1162, 1162, 948 N.Y.S.2d 125 [2012],lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] ). Notably, the exception to the preservation rule is inapplicable inasmuch as defendant's recitation of the facts underlying the crime to which he pleaded guilty does not cast significant doubt on his guilt based on a theory of accessorial liability ( seePenal Law § 20.00) or call into question the voluntariness of his plea ( see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Bethel, 69 A.D.3d 1126, 1127, 894 N.Y.S.2d 205 [2010];People v. Fiske, 68 A.D.3d 1149, 1150, 889 N.Y.S.2d 746 [2009],lv. denied14 N.Y.3d 800, 899 N.Y.S.2d 134, 925 N.E.2d 938 [2010] ). Therefore, the judgment must be affirmed.
ORDERED that the judgment is affirmed.