People v. McKenzie
| Decision Date | 01 October 2009 |
| Docket Number | 100929. |
| Citation | 887 N.Y.S.2d 685,2009 NY Slip Op 6740,66 A.D.3d 1056 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TROY McKENZIE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered February 22, 2007, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
Defendant waived indictment and pleaded guilty to a superior court information charging him with criminal sale of a controlled substance in the third degree. Pursuant to the plea agreement, defendant waived his right to appeal and was sentenced as a second felony offender to a term of imprisonment of 4½ years, to be followed by two years of postrelease supervision. Defendant now appeals and we affirm.
Defendant's contention that his waiver of the right to appeal was invalid, due to County Court's failure during allocution to distinguish the right to appeal from the rights forfeited by his guilty plea, is unpersuasive; defendant, through his counseled written waiver, acknowledged his right to appeal, that he had discussed the waiver of that right and its consequences with counsel, and that he was waiving the right voluntarily (see People v Ramirez, 42 AD3d 671, 671-672 [2007]; see also People v Ramos, 7 NY3d 737, 738 [2006]; People v Gilmour, 61 AD3d 1122, 1123 [2009], lv denied 12 NY3d 925 [2009]; People v Robles, 53 AD3d 686, 687 [2008], lv denied 11 NY3d 794 [2008]; People v Getter, 52 AD3d 1117, 1118 [2008]; People v Cross, 42 AD3d 586, 587 [2007], lv denied 9 NY3d 960 [2007]). Defendant also contends that his plea was not entered voluntarily. While this issue survives his waiver of the right to appeal, it is not preserved for our review insofar as defendant failed to move to withdraw his plea or vacate his judgment of conviction (see People v Dixon, 62 AD3d 1214, 1214 [2009]; People v Nunez, 56 AD3d 897, 898 [2008], lv denied 11 NY3d 928 [2009]). Moreover, "the narrow exception to the preservation rule is inapplicable inasmuch as defendant did not make any statements during his plea allocution which negated an essential element of the crime or otherwise cast significant doubt on his guilt" (People v Wright, 40 AD3d 1314, 1314 [2007]; see People v Cintron, 62 AD3d 1157, 1158 [2009]).
Ordered that the judgment is...
To continue reading
Request your trial
-
People v. McCaskill
...waiver of the right to appeal ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]; People v. McKenzie, 66 A.D.3d 1056, 1056, 887 N.Y.S.2d 685 [2009]; People v. Robles, 53 A.D.3d 686, 687-688, 861 N.Y.S.2d 180 [2008], lv. denied 11 N.Y.3d 794, 866 N.Y.S.2d 620, ......
-
People v. Pendelton
...crime or otherwise cast doubt upon his guilt in order to trigger the exception to the preservation requirement ( see People v. McKenzie, 66 A.D.3d 1056, 1057, 887 N.Y.S.2d 685 [2009]; People v. Dixon, 62 A.D.3d 1214, 1214, 879 N.Y.S.2d 631 [2009], lv. denied 13 N.Y.3d 743, 886 N.Y.S.2d 97, ......
-
People v. Diaz
...N.Y.S.2d 442its consequences with his attorney, and confirms that defendant was waiving the right voluntarily ( see People v. McKenzie, 66 A.D.3d 1056, 1056, 887 N.Y.S.2d 685 [2009]; People v. Ramirez, 42 A.D.3d 671, 671-672, 839 N.Y.S.2d 327 [2007] ). Moreover, in addition to addressing on......
-
People v. Mcfarren
...the crime or otherwise cast doubt upon his guilt so as to trigger the exception to the preservation requirement ( see People v. McKenzie, 66 A.D.3d 1056, 1057, 887 N.Y.S.2d 685 [2009]; [83 A.D.3d 1210] People v. Dixon, 62 A.D.3d 1214, 1214, 879 N.Y.S.2d 631 [2009], lv. denied 13 N.Y.3d 743,......