People v. Bonet

• Decision Date: 10 February 2005
• Docket Number: 15271.
• Citation: People v. Bonet, 15 AD3d 730, 789 N.Y.S.2d 334, 2005 NY Slip Op 1059 (N.Y. App. Div. 2005)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN BONET, Appellant.
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 730

789 N.Y.S.2d 334

2005 NY Slip Op 01059

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN BONET, Appellant.

15271.

Appellate Division of the Supreme Court of the State of New York, Third Department.

February 10, 2005.

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered March 4, 2004, convicting defendant upon his plea of guilty of the crime of attempted burglary in the first degree.

Kane, J.

In satisfaction of a 13-count indictment, defendant pleaded guilty to the crime of attempted burglary in the first degree and waived his right to appeal. He was thereafter sentenced to 8½ years in prison followed by a four-year period of postrelease supervision. Defendant appeals, contending that his plea was involuntary, he was denied the effective assistance of counsel and his sentence is unduly harsh.

We affirm. While defendant's waiver of the right to appeal does not by itself preclude this Court's review of the voluntariness of his plea, by failing to move either to withdraw his plea or to vacate the judgment of conviction defendant has failed to preserve the issue for our review (see People v Branch-El, 12 AD3d 785, 786 [2004]). The narrow exception to the preservation rule is not applicable here insofar as nothing in the record casts significant doubt upon defendant's guilt (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Cabezas, 307 AD2d 594, 595 [2003], lv denied 100 NY2d 618 [2003]). Nevertheless, were we to consider the claim, we would find it to be without merit. The transcript of the plea proceedings discloses that County Court apprised defendant of the rights he was relinquishing by pleading guilty, including the right to appeal. Defendant indicated that he understood the consequences of entering a guilty plea and he signed a written waiver of his right to appeal. In addition, defendant responded affirmatively to the elements of the crime charged. Under these circumstances, we find that both the plea and the waiver were made knowingly, voluntarily and intelligently (see People v Wehrle, 308 AD2d 660, 661 [2003]).

To the extent that defendant's challenge to the effectiveness of counsel impacts upon the voluntariness of the guilty plea, it survives his waiver of the right to appeal (see People v Washington, 3 AD3d 741, 742 [2004], lv denied 2 NY3d 747 [2004]). However, defendant's failure to move to withdraw his plea or to vacate the judgment of conviction renders it unpreserved for our review (see People v Donaldson, 1 AD3d 800, 801 [2003], lv denied 2 NY3d 739 [2004]). In any event, defendant's claim that defense counsel failed to meet with him on numerous occasions is belied by the record. Defendant indicated during...