People v Michael Foster

People v Foster 2005 NY Slip Op 08776 [23 AD3d 839] November 17, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

The People of the State of New York, Respondent, v Michael Foster, Appellant.

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Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered January 28, 2004, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Pursuant to a plea agreement, defendant pleaded guilty to criminal sale of a controlled substance in the third degree in satisfaction of several charges contained in two separate indictments pending against him in Albany County, with the understanding that a prison sentence of 6 to 18 years would be imposed. Prior to sentencing, defendant moved to withdraw his plea, claiming that he had not had enough time to consider the offer and that he was innocent. County Court denied defendant's motion and proceeded to sentence him as agreed. Defendant now appeals.

Review of the record confirms that defendant's plea was knowing, voluntary and intelligent. County Court informed defendant of the rights he was relinquishing by pleading guilty and the ramifications thereof. Defendant acknowledged that he understood those rights, that he had not been threatened or coerced into entering the plea and that he had been afforded adequate time to discuss his choice with counsel representing him on each of the indictments. Additionally, during the plea colloquy defendant unequivocally admitted the alleged conduct and his subsequent claims of innocence were not substantiated by anything other than his own [*2]conclusory statements. Under these circumstances, County Court's denial of defendant's motion to withdraw his plea was proper (see People v King, 20 AD3d 580, 581 [2005], lv denied 5 NY3d 829 [2005]; People v Coss, 19 AD3d 943, 943-944 [2005], lv denied 5 NY3d 805 [2005]; People v Watson, 8 AD3d 911, 911-912 [2004]). Given defendant's knowing, voluntary and intelligent plea and waiver of the right to appeal, we will not review his contention that his sentence was harsh and excessive (see People v Mondore, 18 AD3d 961, 962 [2005]; People v Frazier, 17 AD3d 869, 869 [2005]; People v Clow, 10 AD3d 803, 804-805 [2004]).

Cardona, P.J., Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.