PEOPLE v. SMITH (2008)

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered August 15, 2006, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Having failed to move to withdraw his plea prior to sentencing, the defendant's current contentions that his plea was not knowingly, voluntarily, and intelligently entered, and that he was denied the effective assistance of counsel, are unpreserved for appellate review (see People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160;  People v. LeGrady, 50 A.D.3d 1059, 856 N.Y.S.2d 224;  People v. Ross, 41 A.D.3d 870, 841 N.Y.S.2d 310;  People v. Fecu, 38 A.D.3d 565, 830 N.Y.S.2d 521;  People v. Huchital, 22 A.D.3d 681, 801 N.Y.S.2d 909).   This case does not fall within the narrow exception which arises when the defendant's plea recitation of the facts underlying the crime casts significant doubt on the defendant's guilt (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. LeGrady, 50 A.D.3d 1059, 856 N.Y.S.2d 224;  People v. Ross, 41 A.D.3d 870, 841 N.Y.S.2d 310).   In any event, the record demonstrates that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653;  People v. Matos, 27 A.D.3d 485, 812 N.Y.S.2d 577).   Furthermore, the defendant's claims cannot be reached on this appeal for the additional reason that they are based on matters which are outside the record (see People v. LeGrady, 50 A.D.3d 1059, 856 N.Y.S.2d 224;  People v. Ross, 41 A.D.3d 870, 841 N.Y.S.2d 310;  People v. Villacreses, 12 A.D.3d 624, 626, 785 N.Y.S.2d 103).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).