PEOPLE v. DOLISON (2005)

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered February 24, 2004 in Albany County, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

After refusing to accept several plea bargains, defendant pleaded guilty as charged to criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree just prior to the commencement of jury selection for his trial.   Supreme Court advised defendant that, because he was required to be sentenced as a second felony offender, a sentence of at least 4 1/212 to 9 years in prison would have to be imposed.   However, the court made a commitment to defendant that the longest sentence it would impose would be 6 to 12 years in prison.   Ultimately, the court sentenced defendant to a prison term of 5 to 10 years.   Defendant retained his right to appeal and now exercises that right.

 Defendant's failure to move to withdraw his plea or vacate the judgment of conviction renders his challenge to the voluntariness of his plea unpreserved for our review (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).   The exception to the preservation rule is inapplicable as defendant did not make any statements during the plea colloquy which cast significant doubt upon his guilt or the voluntariness of his plea (see id.).   Regardless, defendant's affirmative answers to Supreme Court's inquiries sufficiently established the elements of the crimes, that he had not been coerced into pleading guilty and that he understood the proceedings as well as the rights he was relinquishing by pleading guilty (see People v. Coles, 13 A.D.3d 665, 666, 786 N.Y.S.2d 595 [2004];  People v. Kemp, 288 A.D.2d 635, 636, 732 N.Y.S.2d 694 [2001] ).

 The sentence imposed is not harsh and excessive under the circumstances.   Indeed, despite defendant's prior criminal history and pattern of substance abuse, Supreme Court sentenced him to less than the longest potential sentence agreed to upon his plea (see People v. Coles, supra at 666, 786 N.Y.S.2d 595;  People v. Butterfield, 9 A.D.3d 682, 682, 779 N.Y.S.2d 820 [2004] ).   Furthermore, the record reveals no extraordinary circumstances warranting modification of the sentence imposed (see People v. Jenkins, 19 A.D.3d 745, 745, 796 N.Y.S.2d 723 [2005];  People v. Mills, 17 A.D.3d 712, 713, 793 N.Y.S.2d 228 [2005], lv. denied 5 N.Y.3d 766, 801 N.Y.S.2d 260, 834 N.E.2d 1270 [2005] ).

ORDERED that the judgment is affirmed.

LAHTINEN, J.

CARDONA, P.J., MERCURE, MUGGLIN and ROSE, JJ., concur.