PEOPLE v. NASCIMENTO (2008)

Appeal from a judgment of the County Court of Washington County (Hall, J.), rendered February 8, 2005, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to burglary in the first degree.   County Court thereafter sentenced defendant in accordance with the negotiated plea agreement to an eight-year prison term to be followed by five years of postrelease supervision.   Defendant now appeals.

 We affirm.   Initially, we note that defendant's claim that he did not enter his guilty plea knowingly and voluntarily has not been preserved for our review inasmuch as defendant never moved to withdraw his plea or vacate the judgment of conviction (see People v. Lopez, 40 A.D.3d 1276, 1276, 836 N.Y.S.2d 336 [2007];  People v. Lewis, 39 A.D.3d 1025, 1025-1026, 833 N.Y.S.2d 757 [2007] ).   In any event, defendant's plea was knowingly, intelligently and voluntarily made inasmuch as County Court sufficiently advised him of the consequences of his plea and he freely admitted to facts which established the elements of the crime (see People v. Escalante, 16 A.D.3d 984, 985, 792 N.Y.S.2d 253 [2005], lvs. denied 5 N.Y.3d 788, 793, 801 N.Y.S.2d 809, 814, 835 N.E.2d 669, 674 [2005];  People v. Cherry, 12 A.D.3d 949, 949, 785 N.Y.S.2d 198 [2004], lv. denied 4 N.Y.3d 797, 795 N.Y.S.2d 172, 828 N.E.2d 88 [2005] ).

 Defendant's particular contention that his plea was defective because County Court did not explicitly inform him that he was forgoing the possibility of Sandoval and Ventimiglia hearings is unavailing (see People v. Whitehurst, 291 A.D.2d 83, 86, 737 N.Y.S.2d 152 [2002], lv. denied 98 N.Y.2d 642, 744 N.Y.S.2d 771, 771 N.E.2d 844 [2002] ), as is his assertion that the failure of County Court to inform him that his plea may subject him to an enhanced sentence on the occasion of a future conviction impacted the validity of his plea (see People v. Folk, 43 A.D.3d 1229, 1230, 842 N.Y.S.2d 108 [2007];  People v. August, 33 A.D.3d 1046, 1050, 822 N.Y.S.2d 334 [2006], lv. denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007] ).   Moreover, County Court properly inquired whether defendant was aware of a potential intoxication defense and was voluntarily waiving such defense by his guilty plea (see People v. Munck, 278 A.D.2d 662, 662-663, 717 N.Y.S.2d 431 [2000];  People v. Moore, 270 A.D.2d 715, 716, 705 N.Y.S.2d 425 [2000], lv. denied 95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240 [2000] ).   In light of these findings, we also reject defendant's federal due process claims (see People v. Folk, 43 A.D.3d at 1230, 842 N.Y.S.2d 108).

ORDERED that the judgment is affirmed.

MERCURE, J.P.

PETERS, ROSE, LAHTINEN and KAVANAGH, JJ., concur.