At page 643 Preservation of claims regarding guilty plea voluntariness and counsel10 citing cases“failure to move to withdraw the plea or vacate the judgment of conviction serves as a bar to this challenge as well”
- People v. White, 104 A.D.3d 1056 (N.Y. App. Div. 3d Dep't 2013).published Nonetheless, defendant’s arguments regarding the voluntariness of his plea and the ineffective assistance of his trial counsel have not been properly preserved for our review by a motion to withdraw his plea (see People v Lopez, 52 AD3d 85…
- People v. Smith, 56 A.D.2d 894 (N.Y. App. Div. 3d Dep't 2008).publishedAs for defendant’s contention that he was denied the effective assistance of counsel, his “failure to move to withdraw the plea or vacate the judgment of conviction serves as a bar to this challenge as well” (People v McEnteggart, 26 AD3d…
- People v. Robles, 53 A.D.3d 686 (N.Y. App. Div. 3d Dep't 2008).publishedDefendant’s challenge to the voluntariness of her plea has not been preserved for this Court’s review, inasmuch as she never moved to withdraw her plea or vacate the judgment of conviction (see People v Stokely, 49 AD3d 966, 967 [2008]; Pe…
- People v. Lewis, 39 A.D.3d 1025 (N.Y. App. Div. 3d Dep't 2007).publishedDefendant’s contention that her guilty plea was not voluntar ily, knowingly and intelligently entered has not been preserved for our review, given that she never moved to withdraw her plea or vacate the judgment of conviction (see People v…
- People v. Heckerman, 37 A.D.3d 953 (N.Y. App. Div. 3d Dep't 2007).publishedDuring his plea colloquy, defendant informed County Court that he unlawfully entered a dwelling through “an unlocked front door,” picked up a purse “and exited with it.” Furthermore, the record likewise demonstrates that his guilty plea wa…
- People v. Baldwin, 36 A.D.3d 1024 (N.Y. App. Div. 3d Dep't 2007).publishedNotably, while defendant’s appeal waiver does not serve as a bar to his claim of ineffective assistance of counsel to the extent that it impacts upon the voluntariness of his plea (see People v Wise, 29 AD3d 1216, 1216 [2006], lv denied 7…
- People v. Bigwarfe, 35 A.D.3d 904 (N.Y. App. Div. 3d Dep't 2006).publishedThis issue is also unpreserved since defendant did not move to either withdraw his guilty plea or vacate the judgment of conviction (see People v McEnteggart, 26 AD3d 643, 643 [2006], lv denied 7 NY3d 759 [2006]; People v Bennett, 24 AD3d…
- People v. Eiffe, 34 A.D.3d 985 (N.Y. App. Div. 3d Dep't 2006).publishedMoreover, the narrow exception to the preservation rule is inapplicable as nothing defendant stated during the plea proceedings cast doubt on her guilt or otherwise tended to negate a material element of the crime (see People v Phillips, 2…
- People v. Lopez, 52 A.D.3d 852 (N.Y. App. Div. 3d Dep't 2008).published
v.
Michael J. McEnteggart
Appeal from a judgment of the County Court of Saratoga County (Scarano, Jr., J.), rendered April 15, 2004, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
In satisfaction of a nine-count indictment, defendant pleaded guilty in February 2004 to attempted burglary in the second degree and waived his right to appeal. County Court thereafter sentenced defendant in accordance with the negotiated plea agreement to a two-year prison term. Defendant now appeals and we affirm.
Defendant’s claim that he did not enter his guilty plea knowingly and voluntarily, although not encompassed by his express waiver of the right to appeal, has not been preserved for our review inasmuch as defendant never moved to withdraw the plea or vacate the judgment of conviction (see People v Champion, 20 AD3d 772, 772-773 [2005]; People v Cash, 19 AD3d 934, 935 [2005]). Moreover, the exception to the preservation rule is inapplicable because defendant did not make any statements during his plea allocution which were inconsistent with his guilt such as to negate a material element of the crime (see People v Lopez, 71 NY2d 662, 666-667 [1988]; People v Kelly, 3 AD3d 789, 789 [2004], lv denied 2 NY3d 801 [2004]). In any event, the record is clear that County Court advised defendant of his rights and explained the consequences of his plea, and that defendant, after asking some clarifying questions, ensured that he understood his rights and desired to plead guilty. Thus, even considering this claim, we conclude that defendant’s guilty plea was made in a knowing, voluntary and intelligent manner (see People v Santalucia, 19 AD3d 806, 807 [2005]).
To the extent that defendant argues that he was denied the effective assistance of counsel, we note that the failure to move to withdraw the plea or vacate the judgment of conviction serves as a bar to this challenge as well (see People v Coles, 13 AD3d 665, 666 [2004]). In any event, we find no merit to the assertion. Further, having already decided that defendant knowingly, voluntarily and intelligently pleaded guilty and waived his right[*644] to appeal, we decline to review his claim that his sentence was harsh and excessive (see People v Karwan, 21 AD3d 1217, 1218 [2005]; People v Mondore, 18 AD3d 961, 962 [2005]).
Cardona, P.J., Mercure, Carpinello and Rose, JJ., concur. Ordered that the judgment is affirmed.