Opinion
14370
Decided and Entered: November 13, 2003.
Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered June 6, 2002, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.
Theresa M. Suozzi, Saratoga Springs, for appellant.
Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), for respondent.
Before: Mercure, J.P., Peters, Spain, Mugglin and Lahtinen, JJ.
MEMORANDUM AND ORDER
Defendant's plea to criminal possession of a controlled substance in the fifth degree was entered in full satisfaction of a multiple count indictment alleging sale of heroin to an undercover officer. As part of the plea bargain, defendant waived his right to appeal and the People agreed to recommend a prison sentence of 2 to 6 years with diversion to a drug treatment program. Despite a Parker admonition, defendant abandoned the residential drug program and failed to appear for sentencing. Defendant was sentenced in absentia to the promised period of imprisonment. Defendant appeals, contending that his plea was not voluntary, that he did not receive the effective assistance of counsel and that the sentence was excessive.
We affirm. Inasmuch as defendant failed to move to withdraw his plea or otherwise vacate the judgment of conviction, any attack on the voluntariness of the plea is unpreserved (see People v. De Berardinis, 304 A.D.2d 914, 915, lv denied 100 N.Y.2d 580; People v. McCann, 303 A.D.2d 780, 781, lv denied 100 N.Y.2d 584;People v. Camp, 302 A.D.2d 629, 630, lv denied 100 N.Y.2d 593; People v. Teague, 295 A.D.2d 813, 814, lv denied 98 N.Y.2d 772). Were we to reach defendant's argument concerning the entry of his plea, we would find it unpersuasive since the record clearly supports the conclusion that the plea was knowingly, intelligently and voluntarily entered (see People v. Smith, 305 A.D.2d 853, 854, lv denied 100 N.Y.2d 624 [Sept. 18, 2003]; People v. Sampson, 301 A.D.2d 677; People v. Keyes, 300 A.D.2d 909, 909-910; People v. Fulford, 296 A.D.2d 661, 662).
Next, many of the alleged failings defendant points to as supporting his claim of ineffective assistance of counsel relate to sentencing, not to the voluntariness of the plea, and are precluded by his waiver of appeal (see People v. De Berardinis, supra at 915; People v. Camp, supra at 630). Further, failure of defendant's attorney to persuade County Court to impose a lighter sentence (particularly in view of defendant's abandonment of the drug treatment program and his disappearance prior to sentencing) does not constitute ineffectiveness (see People v. Smith, 300 A.D.2d 745, 746, lvs denied 99 N.Y.2d 616, 620).
Finally, any challenge to the sentence as excessive is precluded by defendant's waiver of appeal (see People v. Rea, 305 A.D.2d 802). He waived his right to be considered for youthful offender treatment by failing to request it and, given the totality of defendant's conduct, no basis exists upon which to exercise our interest of justice powers to consider the issue now (see People v. McGowen, 42 N.Y.2d 905, 906; People v. Richardson, 295 A.D.2d 704, 704, lvs denied 98 N.Y.2d 709, 713; People v. Chaplin, 178 A.D.2d 685, lv denied 79 N.Y.2d 945).
Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.