People v. SR

• Citation: 2013 N.Y. Slip Op. 08552,976 N.Y.S.2d 747,112 A.D.3d 1232
• Parties: The PEOPLE of the State of New York, Respondent, v. James H. SMITH Sr., Appellant.
• Decision Date: 26 December 2013
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1232
976 N.Y.S.2d 747
2013 N.Y. Slip Op. 08552

The PEOPLE of the State of New York, Respondent,
v.
James H. SMITH Sr., Appellant.

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

Dec. 26, 2013.

[976 N.Y.S.2d 748]

John A. Cirando, Syracuse, for appellant.

Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 22, 2012, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with burglary in the third degree. He thereafter pleaded guilty to that crime in full satisfaction of this charge and other pending charges. As part of the plea agreement, defendant waived his right to appeal and agreed to pay restitution. County Court sentenced defendant, as a second felony offender, to a prison term of 3 1/2 to 7 years and ordered him to pay restitution in the amount of $1,146.18. Defendant appeals, and we affirm.

Initially, we reject defendant's contention that his waiver of the right to appeal was invalid, as the plea allocution and the counseled written waiver executed in open court demonstrate that he voluntarily, knowingly and intelligently waived the right to appeal his conviction and sentence ( see People v. Brown, 101 A.D.3d 1267, 1268, 956 N.Y.S.2d 618 [2012], lv. denied21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013]; People v. Jerome, 98 A.D.3d 1188, 1189, 951 N.Y.S.2d 586 [2012], lv. denied20 N.Y.3d 987, 958 N.Y.S.2d 702, 982 N.E.2d 622 [2012] ). His valid appeal waiver precludes his claim that County Court should have granted him judicial diversion to a substance abuse treatment program ( see People v. Ivey, 79 A.D.3d 1531, 1532, 917 N.Y.S.2d 711 [2010], lvs. denied16 N.Y.3d 856, 859, 923 N.Y.S.2d 418, 421, 947 N.E.2d 1197, 1200 [2011]; see generally People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).

Defendant's contention that his guilty plea was not knowing, voluntary and intelligent, which survives his appeal waiver, is not preserved for our review, as the record does not reveal that he made a motion to withdraw the plea or vacate the judgment of conviction ( see

[976 N.Y.S.2d 749]

People v. Gathers, 106 A.D.3d 1333, 1334, 965 N.Y.S.2d 246 [2013], lv. denied21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013]; People v. Leone, 105 A.D.3d 1249, 1250, 963 N.Y.S.2d 480 [2013], lv. denied21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ). Moreover, contrary to defendant's contention, the narrow exception to the preservation rule does not apply here “as defendant did not make any statements during the plea allocution that negated a material element of the crime...