People v. Fontanet

• Decision Date: 04 March 2015
• Docket Number: 2009-05460
• Citation: 2 N.Y.S.3d 371 (Mem),126 A.D.3d 723,2015 N.Y. Slip Op. 01815
• Parties: The PEOPLE, etc., respondent, v. Alexander FONTANET, appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 723

2 N.Y.S.3d 371 (Mem)

2015 N.Y. Slip Op. 01815

The PEOPLE, etc., respondent

v.Alexander FONTANET, appellant.

2009-05460

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

March 4, 2015.

Virginia Boccio, Farmingdale, N.Y., for appellant.

Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jason R. Richards of counsel), for respondent.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Donnino, J.), rendered May 11, 2009, convicting him of criminal sale of a controlled substance in the third degree (six counts) and conspiracy in the fourth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court's oral colloquy sufficiently advised the defendant of the nature of the right to appeal, and the record establishes that the defendant knowingly, voluntarily, and intelligently waived that right (see People v. Bennett, 122 A.D.3d 871, 996 N.Y.S.2d 369 ; People v. Persaud, 118 A.D.3d 820, 987 N.Y.S.2d 221 ; People v. Budden, 77 A.D.3d 672, 908 N.Y.S.2d 362 ; People v. Burvick, 60 A.D.3d 689, 874 N.Y.S.2d 808 ). The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Lujan, 114 A.D.3d 963, 964, 980 N.Y.S.2d 815 ). However, the defendant failed to preserve this contention (see People v. Bennett, 122 A.D.3d at 871, 996 N.Y.S.2d 369 ; People v. Sabo, 117 A.D.3d 1089, 986 N.Y.S.2d 232 ; People v. Ortiz, 116 A.D.3d 1070, 1070, 983 N.Y.S.2d 905 ). Moreover, contrary to the defendant's contention, the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Lujan, 114 A.D.3d at 964, 980 N.Y.S.2d 815 ).

The contentions raised in the defendant's motion pursuant to CPL 440.10 are not properly before this Court on the appeal from the judgment, and the defendant did not seek leave to appeal from the order denying the motion (see People v. Washington, 45 A.D.3d 880, 847 N.Y.S.2d 113 ; People v. Wynn, 40 A.D.3d 893, 834 N.Y.S.2d 482 ; People v. Morales, 17 A.D.3d 487, 795 N.Y.S.2d 240 ; People v. Torres, 194 A.D.2d 815, 599 N.Y.S.2d 1014 ).

The defendant's remaining contentions are forfeited by his plea of guilty (see People v. Patterson, 106 A.D.3d 757, 758, 964 N.Y.S.2d 233 ; People v. Crummell, 84 A.D.3d 1393, 1394, 924 N.Y.S.2d 290 ; People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 ; People v. Greeman, 49 A.D.3d 463, 464, 853 N.Y.S.2d 557 ).

SKELOS, J.P., BALKIN, SGROI and LaSALLE, JJ., concur.