People v. Whitfield

• Citation: 941 N.Y.S.2d 893,2012 N.Y. Slip Op. 02725,94 A.D.3d 1238
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael WHITFIELD, Appellant.
• Decision Date: 12 April 2012
• Court: New York Supreme Court Appellate Division

2012 N.Y. Slip Op. 02725

94 A.D.3d 1238

941 N.Y.S.2d 893

The PEOPLE of the State of New York, Respondent,

v.Michael WHITFIELD, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 12, 2012.

Jeffrey L. Zimring, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: MERCURE, J.P., LAHTINEN, SPAIN, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the Supreme Court (R. Sise, J.), rendered November 5, 2010 in Schenectady County, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

In November 2009, an 11–count indictment was handed up against defendant which included, among other things, multiple counts of criminal possession of a weapon. Ultimately, in November 2010, he pleaded guilty to one count of attempted criminal possession of a weapon in the second degree, waived his right to appeal and was sentenced, pursuant to a plea agreement, to two years in prison followed by three years of postrelease supervision. Defendant appeals and we affirm.

Although defendant's challenge to the voluntariness of his plea survives his valid waiver of appeal, it is unpreserved for this Court's review by his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Martinez–Velazquez, 89 A.D.3d 1318, 1319, 932 N.Y.S.2d 908 [2011]; People v. Abrams, 75 A.D.3d 927, 928, 904 N.Y.S.2d 822 [2010], lv. denied 15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010] ). Further, although defendant made passing reference to his purported dissatisfaction with counsel, he made no statements during the plea allocution that raised doubts about his guilt or negated any material element of the crime, and thus the narrow exception to the preservation requirement does not apply ( see People v. Sherman, 91 A.D.3d 982, 983, 936 N.Y.S.2d 358 [2012]; People v. Campbell, 89 A.D.3d 1279, 1279, 932 N.Y.S.2d 583 [2011] ).

ORDERED that the judgment is affirmed.

MERCURE, J.P., LAHTINEN, SPAIN and McCARTHY, JJ., concur.