PEOPLE v. CRUDUP (2007)

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered December 15, 2004, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Resolving a six-count indictment, defendant waived his right to appeal and pleaded guilty to attempted criminal sale of a controlled substance in the third degree.   County Court sentenced him in accordance with the plea agreement to 4 to 8 years in prison.   Defendant now appeals.

 We affirm.   Defendant's challenge to the voluntariness of his guilty plea, although not encompassed by his waiver of appeal, is not properly before us given his failure to move to withdraw the plea or vacate the judgment of conviction (see People v. Smith, 37 A.D.3d 975, 975-976, 829 N.Y.S.2d 755 [2007] ).   As for defendant's claim of ineffective assistance of counsel, it is precluded by his valid appeal waiver except insofar as the alleged ineffectiveness could be construed to have impacted upon the voluntariness of his plea and, to that extent, the absence of a motion to withdraw the plea or vacate the judgment of conviction renders the matter unpreserved for our review (see People v. Missimer, 32 A.D.3d 1114, 1115, 821 N.Y.S.2d 485 [2006], lv. denied 7 N.Y.3d 927, 827 N.Y.S.2d 696, 860 N.E.2d 998 [2006] ).   Notwithstanding the foregoing, nothing in the record indicates that defendant's plea was other than voluntarily, knowingly and intelligently entered or that he was afforded less than meaningful representation (see People v. LaCaille, 26 A.D.3d 592, 593, 811 N.Y.S.2d 132 [2006], lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380 [2006] ).   Finally, in light of defendant's waiver of the right to appeal, his contention that his sentence is harsh and excessive is foreclosed (see People v. Tedesco, 38 A.D.3d 1102, 1103, 833 N.Y.S.2d 272 [2007], lv. denied 8 N.Y.3d 991, 838 N.Y.S.2d 494, 869 N.E.2d 670 [2007] ).

ORDERED that the judgment is affirmed.

MERCURE, J.P.

MUGGLIN, ROSE, LAHTINEN and KANE, JJ., concur.