People v McClinton

People v McClinton 2014 NY Slip Op 04517 Decided on June 18, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 18, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
THOMAS A. DICKERSON, J.P.
JOHN M. LEVENTHAL
L. PRISCILLA HALL
ROBERT J. MILLER, JJ.
2013-00781
(Ind. No. 864-12)

[*1]The People of the State of New York, respondent,

v

Charles McClinton, appellant.

Matthew Muraskin, Port Jefferson, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Toomey, J.), rendered December 14, 2012, convicting him of attempted criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

As the People correctly concede, the defendant's waiver of his right to appeal was not knowing, voluntary, and intelligent (see People v Bradshaw, 18 NY3d 257, 265; People v Lopez, 6 NY3d 248).

However, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review since the defendant did not move to withdraw his plea on this ground prior to sentencing (see CPL 220.60[3]; People v Clarke, 93 NY2d 904; People v Lujan, 114 AD3d 963; People v Ovalle, 112 AD3d 971). Furthermore, contrary to the defendant's contention, the exception to the preservation requirement does not apply here, since the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v Lopez, 71 NY2d 662, 666). In any event, the defendant's contention is without merit.

DICKERSON, J.P., LEVENTHAL, HALL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court