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PEOPLE v. HILL (2004)

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

The PEOPLE of the State of New York, Respondent, v. Mervin L. HILL, Appellant.

Decided: October 28, 2004

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Eugene P. Devine, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. Paul A. Clyne, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered May 7, 2001 in Albany County, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to a reduced charge of attempted burglary in the second degree in full satisfaction of a three-count indictment.   In accordance with the plea agreement, defendant was sentenced as a second felony offender to a prison term of four years and five years of postrelease supervision.   Defendant appeals and we affirm.

 Initially, as defendant failed to move to withdraw his plea or to vacate the judgment of conviction, his challenge to the voluntariness of his plea is not preserved for our review (see People v. Williams, 6 A.D.3d 746, 746, 776 N.Y.S.2d 329 [2004], lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211 [2004];  People v. Boyce, 2 A.D.3d 1208, 1208, 769 N.Y.S.2d 659 [2003], lv. denied 2 N.Y.3d 737, 778 N.Y.S.2d 463, 810 N.E.2d 916 [2004] ).   In any event, a review of the plea colloquy indicates that Supreme Court fully apprised defendant of the nature and consequences of his guilty plea, and he unequivocally stated that he was not under the influence of alcohol or drugs, he had adequate time to discuss the terms of the plea with counsel and he understood the rights he would be relinquishing if he pleaded guilty, and he then admitted committing acts satisfying each element of the crime of attempted burglary in the second degree (see People v. Barnes, 302 A.D.2d 623, 623-624, 753 N.Y.S.2d 760 [2003], lv. denied 99 N.Y.2d 652, 760 N.Y.S.2d 116, 790 N.E.2d 290 [2003];  People v. Terry, 300 A.D.2d 757, 757, 751 N.Y.S.2d 629 [2002], lv. denied 99 N.Y.2d 620, 757 N.Y.S.2d 831, 787 N.E.2d 1177 [2003] ).   We also find no merit to defendant's contention that his sentence was harsh and excessive given his criminal history and the fact that he was sentenced in accordance with the negotiated plea agreement.   Furthermore, we do not find extraordinary circumstances or an abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Jackson, 302 A.D.2d 748, 750, 757 N.Y.S.2d 114 [2003], lv. denied 100 N.Y.2d 539, 763 N.Y.S.2d 5, 793 N.E.2d 419 [2003];  People v. Poleto, 252 A.D.2d 668, 675 N.Y.S.2d 915 [1998], lv. denied 92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282 [1998] ).

ORDERED that the judgment is affirmed.



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