Opinion
2011-10-6
The PEOPLE of the State of New York, Respondent,v.Dandre JONES, Appellant.
Marie B. Beckford, Albany, for appellant.P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.Before: MERCURE, J.P., MALONE JR., KAVANAGH, McCARTHY and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 12, 2010, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.
Defendant was charged in an indictment with assault in the first degree, assault in the second degree and criminal possession of a weapon in the third degree. Pursuant to a negotiated plea agreement, defendant pleaded guilty to a reduced count of attempted assault in the first degree in full satisfaction of the indictment and waived his right to appeal. County Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon term of imprisonment of nine years, to be followed by five years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's failure to move to withdraw his plea or vacate the judgment of conviction renders his challenge to the voluntariness and factual sufficiency of his plea unpreserved for our review ( see People v. Glynn, 73 A.D.3d 1290, 1291, 900 N.Y.S.2d 513 [2010]; People v. Johnson, 54 A.D.3d 1133, 1133, 864 N.Y.S.2d 219 [2008] ). Further, the narrow exception to the preservation requirement is inapplicable here, inasmuch as defendant did not make any statements during the plea allocution that cast doubt upon 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. Spears, 78 A.D.3d 1380, 1380, 911 N.Y.S.2d 245 [2010] ). Finally, defendant's waiver of the right to appeal precludes his *497 claim that the sentence imposed is harsh and excessive ( see People v. Tatum, 82 A.D.3d 1411, 1412, 918 N.Y.S.2d 804 [2011], lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ).
ORDERED that the judgment is affirmed.
MERCURE, J.P., MALONE JR., KAVANAGH and McCARTHY, JJ., concur.