People v. Singh

• Decision Date: 27 May 2010
• Citation: 73 A.D.3d 1384,2010 N.Y. Slip Op. 04468,901 N.Y.S.2d 428
• Parties: The PEOPLE of the State of New York, Respondent,v.Sasenarine SINGH, Appellant.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 1384

901 N.Y.S.2d 428

2010 N.Y. Slip Op. 04468

The PEOPLE of the State of New York, Respondent,

v.Sasenarine SINGH, Appellant.

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

May 27, 2010.

Jeffrey V. Jamison, Albany, for appellant.Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.Before: MERCURE, J.P., PETERS, SPAIN, ROSE and KAVANAGH, JJ.SPAIN, J.

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered January 22, 2008, convicting defendant upon his plea of guilty of the crime of attempted burglary in the first degree.

Defendant pleaded guilty to a reduced charge of attempted burglary in the first degree in satisfaction of a nine-count indictment and waived his right to appeal. Pursuant to the negotiated plea agreement, County Court sentenced defendant to four years in prison followed by 2 1/2 years of postrelease supervision. Defendant now appeals, claiming that his plea was involuntary, his sentence was harsh and excessive and he received ineffective assistance of counsel.

Defendant's challenge to the voluntariness of his plea survives the waiver of his right to appeal but is unpreserved given his failure to move to withdraw the plea or vacate the judgment of conviction ( see People v. Scitz, 67 A.D.3d 1251, 1251, 889 N.Y.S.2d 306 [2009] ). Furthermore, as defendant did not make any statements during the plea allocution that tended to negate a material element of the crime or cast doubt on his guilt, the narrow exception to the preservation rule does not apply ( see People v. Cintron, 62 A.D.3d 1157, 1158, 881 N.Y.S.2d 183 [2009], lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009]; People v. Dobrouch, 59 A.D.3d 781, 781–782, 873 N.Y.S.2d 759 [2009], lv. denied 12 N.Y.3d 853, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ). In any event, defendant's assertions that he was coerced into entering the plea or confused by its terms are belied by the record, which reveals that defendant entered a voluntary, knowing and intelligent plea.

To the extent that defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea, it too survives the waiver of appeal ( see People v. Anderson, 63 A.D.3d 1191, 1193, 879 N.Y.S.2d 849 [2009], lv. denied 13 N.Y.3d 794, 887 N.Y.S.2d 543, 916 N.E.2d 438 [2009] ). However, it is similarly unpreserved as a result of defendant's failure to move to withdraw the plea or vacate the judgment of conviction ( see id.). Reviewing the claim, we find it is unavailing. Def...