People v. Kelly, 14216

• Decision Date: 29 January 2004
• Docket Number: 14216
• Citation: 2004 NY Slip Op 00416,3 A.D.3d 789,770 N.Y.S.2d 910
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KAREN F. KELLY, Appellant.
• Court: New York Supreme Court — Appellate Division

3 A.D.3d 789

770 N.Y.S.2d 910

2004 NY Slip Op 00416

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KAREN F. KELLY, Appellant.

14216

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

January 29, 2004.

Appeal from a judgment of the County Court of Saratoga County (Scarano, Jr., J.), rendered August 31, 2001, convicting defendant upon her plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

MUGGLIN, J.

Defendant was charged in a six-count indictment with various drug-related crimes. In full satisfaction of the indictment, defendant pleaded guilty to the first count, after it was amended and reduced, of attempted criminal sale of a controlled substance in the third degree. As part of the plea agreement, defendant agreed to waive her right to appeal and to be sentenced to 21/3 to 7 years in prison. County Court imposed the agreed-upon sentence and recommended, at defendant's request, that she be afforded entry into the ASAT and CASAT programs for substance abuse. Defendant now appeals.

Initially, defendant's challenge to the factual sufficiency of the plea allocution is precluded by her waiver of the right to appeal as well as her failure to move to withdraw the plea or vacate the judgment of conviction (see People v Wehrle, 308 AD2d 660, 661 [2003]). Inasmuch as defendant did not make any statements inconsistent with her guilt which negated an essential element of the crime, the exception to the preservation rule is inapplicable (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Cabezas, 307 AD2d 594, 595 [2003], lv denied 100 NY2d 618 [2003]). Likewise, defendant's challenge to the severity of the sentence is also encompassed by her voluntary waiver of the right to appeal (see People v Anderson, 304 AD2d 975, 976 [2003], lv denied 100 NY2d 578 [2003]; People v Samuels, 304 AD2d 913 [2003], lv denied 100 NY2d 586 [2003]).

Peters, J.P. Spain, Rose and Kane, JJ., concur.

Ordered that the judgment is affirmed.