People v Craig A. Leabo

People v Leabo 2003 NY Slip Op 19904 [2 AD3d 1213] December 31, 2003 Appellate Division, Third Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Craig A. Leabo, Appellant.

—Kane, J. Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered February 25, 2002, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

A grand jury indicted defendant on the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, both class B felonies. Pursuant to a negotiated plea agreement, defendant pleaded guilty to the reduced crime of criminal possession of a controlled substance in the fifth degree, a class D felony, in satisfaction of the indictment, two pending violation of probation petitions, and any potential narcotics charges arising from incidents which occurred in the periods three months before and after the date of the allegations in the indictment. No sentence was recommended. The plea included a waiver of the right to appeal, except as to the sentence. County Court sentenced defendant to a term of two to six years' incarceration.

Defendant's arguments concerning the voluntariness of his plea and ineffectiveness of counsel are not preserved for our review because he did not move to withdraw his plea or vacate the judgment of conviction (see People v Camp, 302 AD2d 629, 630 [2003], lv denied 100 NY2d 593 [2003]; People v King, 299 AD2d 661 [2002], lv denied 99 NY2d 583 [2003]). His sentence is not harsh or excessive. It is moderate considering defendant's criminal history, his exposure to two concurrent terms of 81/3 to 25 years on the original charges, plus the dismissal of the probation violation petitions and waiver of other potential charges (see People v Sczepankowski, 293 AD2d 212, 215-216 [2002], lv denied 99 NY2d 564 [2002]).

Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.