People v. Taylor

• Decision Date: 03 November 2011
• Citation: 931 N.Y.S.2d 918,89 A.D.3d 1143,2011 N.Y. Slip Op. 07749
• Parties: The PEOPLE of the State of New York, Respondent,v.Harold TAYLOR, Appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1143

931 N.Y.S.2d 918

2011 N.Y. Slip Op. 07749

The PEOPLE of the State of New York, Respondent,

v.Harold TAYLOR, Appellant.

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

Nov. 3, 2011.

OPINION TEXT STARTS HEREJames P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.Before: MERCURE, J.P., MALONE JR., KAVANAGH, McCARTHY and EGAN JR., JJ.

KAVANAGH, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 4, 2009, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In satisfaction of a five-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and waived his right to appeal. County Court thereafter sentenced defendant as a predicate offender to an agreed-upon sentence of four years in prison, followed by two years of postrelease supervision. Defendant was also ordered to forfeit the automobile that was used during the commission of the crime. Defendant now appeals.

We affirm. To the extent that defendant challenges the factual sufficiency of his plea, such an argument is foreclosed by his waiver of his right to appeal and has not been preserved for our review due to defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Planty, 85 A.D.3d 1317, 1317, 925 N.Y.S.2d 240 [2011], lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011]; People v. White, 84 A.D.3d 1641, 1641, 923 N.Y.S.2d 371 [2011]; People v. Richardson, 83 A.D.3d 1290, 1291, 920 N.Y.S.2d 752 [2011], lv. denied 17 N.Y.3d 821, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ).

While defendant's claim that his plea was involuntary survives his waiver of the right to appeal,¹ it is also unpreserved for our review due to his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Small, 82 A.D.3d 1451, 1452, 918 N.Y.S.2d 755 [2011], lv. denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011]; People v. Campbell, 81 A.D.3d 1184, 1185, 917 N.Y.S.2d 419 [2011] ). Further, defendant did not make any statements during the plea colloquy that tended to cast doubt upon his guilt and, as such, the narrow exception to the preservation requirement is not applicable here ( see People v. Smith, 81 A.D.3d 1034, 1035, 916 N.Y.S.2d 293 [2011], lv. denied 16 N.Y.3d 899, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011]; People v. Dishaw, 81 A.D.3d 1035, 1037, 916 N.Y.S.2d 295 [2011], lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011] ). In any event, his claim regarding his plea is without merit, as it is clear from the record that he was given an ample opportunity to discuss his decision to plead guilty with both his attorney and members of his family who were present in the courtroom at the time he entered his guilty plea ( see People v. Smith, 81 A.D.3d at 1035, 916 N.Y.S.2d 293; People v. Singh, 73 A.D.3d 1384, 1385, 901 N.Y.S.2d 428 [2010], lv. denied 15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 [2010] ).

Finally, defendant's waiver of his right to appeal precludes review of any claim that the sentence...