PEOPLE v. FREDERICK (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Kevin P. Dooley, J.), rendered March 6, 2020, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

In satisfaction of an eight-count indictment, defendant pleaded guilty to the reduced charge of criminal possession of a controlled substance in the fifth degree and waived his right to appeal.  Defendant was sentenced, as a second felony offender with a prior violent felony, to the agreed-upon prison term of 21/212 years followed by 2 years of postrelease supervision.  Defendant appeals.

Although not precluded by his waiver of the right to appeal, defendant's challenge to the voluntariness of the plea and/or sufficiency of the plea colloquy is unpreserved for our review given that defendant did not make an appropriate postallocution motion, despite having an opportunity to do so (see People v. Loya, 215 A.D.3d 1181, 1183, 187 N.Y.S.3d 444 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 502, 213 N.E.3d 644 [2023];  People v. Hilliard, 214 A.D.3d 1259, 1260, 184 N.Y.S.3d 638 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 501, 213 N.E.3d 643 [2023]).  Further, the narrow exception to the preservation requirement was not triggered here, as the record does not reflect that defendant made any statements that negated an element of the charged crime, cast doubt upon his guilt or otherwise called into question the voluntariness of the plea (see People v. Loya, 215 A.D.3d at 1183, 187 N.Y.S.3d 444;  People v. Rubert, 206 A.D.3d 1378, 1380, 170 N.Y.S.3d 346 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 518, 198 N.E.3d 761 [2022]).  To the extent defendant requests that we take corrective action in the interest of justice, we decline to do so (see People v. Miller, 215 A.D.3d 1141, 1142, 186 N.Y.S.3d 445 [3d Dept. 2023], lv denied 40 N.Y.3d 930, 192 N.Y.S.3d 497, 213 N.E.3d 639 [2023]).

ORDERED that the judgment is affirmed.

Clark, J.

Lynch, J.P., Aarons, Pritzker and Ceresia, JJ., concur.