People v. Barnes

• Decision Date: 31 July 2014
• Citation: 119 A.D.3d 1290,2014 N.Y. Slip Op. 05572,989 N.Y.S.2d 700
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. David E. BARNES, Appellant.

119 A.D.3d 1290

989 N.Y.S.2d 700

2014 N.Y. Slip Op. 05572

The PEOPLE of the State of New York, Respondent,

v.David E. BARNES, Appellant.

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

July 31, 2014.

George P. Ferro, Albany, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: PETERS, P.J., STEIN, ROSE, EGAN JR. and CLARK, JJ.

STEIN, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered July 27, 2012, convicting defendant upon his plea of guilty of the crimes of offering a false instrument for filing in the first degree, driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the second degree.

Pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty to offering a false instrument for filing in the first degree, as charged in a superior court information. During the plea colloquy, defendant admitted that he had knowingly submitted a false statement to the Department of Motor Vehicles. Defendant concomitantly entered a guilty plea to two misdemeanor charges in satisfaction of a pending indictment, and waived his right to appeal. In exchange, he was promised a sentence of time served followed by five years of probation, so long as he abided by the terms of the plea agreement. After defendant violated the plea agreement by not cooperating with the Probation Department and failing to appear at the scheduled violation hearing, County Court, among other things, imposed various terms of imprisonment, the longest of which was 1 to 3 years. Defendant now appeals.

We affirm. Defendant argues that his guilty plea should be vacated because it was not knowing or voluntary. While this challenge to the voluntariness of the plea may be raised notwithstanding his uncontested appeal waiver ( see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];People v. Moses, 110 A.D.3d 1118, 1118, 972 N.Y.S.2d 363 [2013] ), it was not preserved for appellate review by a motion to withdraw his guilty plea ( see People v. Watson, 115 A.D.3d 1016, 1017, 981 N.Y.S.2d 627 [2014] ). We are not persuaded by defendant's central contention that his statements during the plea colloquy cast doubt on his guilt or on the voluntariness of his guilty plea so as to implicate the exception to the preservation requirement ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];People v. Newton, 113 A.D.3d 1000, 1001, 979 N.Y.S.2d 545 [...