PEOPLE v. CAMPBELL (2009)

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered December 5, 2007, convicting defendant upon her plea of guilty of the crime of forgery in the second degree.

Defendant pleaded guilty to one count of forgery in the second degree in satisfaction of a 19-count indictment and waived her right to appeal.   County Court sentenced her, as a second felony offender, to the agreed-upon prison term of 3 1/212 to 7 years.   Defendant now appeals.

 Initially, we reject defendant's challenge to the validity of her appeal waiver.   During the plea colloquy, County Court explained the appeal waiver to defendant, who stated on the record that she understood it and that she was waiving her right to appeal as part of the plea agreement, and had spoken to counsel about it.   Moreover, in open court she executed a written waiver of appeal which explained the appellate process, and she indicated both that she had discussed the issue with counsel and was freely and voluntarily waiving her right to appeal.   Under these circumstances, defendant's appeal waiver is valid (see People v. Gilmour, 61 A.D.3d 1122, 1123, 876 N.Y.S.2d 553 [2009], lv. denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009];  People v. Mosher, 45 A.D.3d 970, 970, 845 N.Y.S.2d 174 [2007], lv. denied 10 N.Y.3d 814, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008] ).

 Defendant also asserts that her plea was not knowingly and voluntarily entered.   While this argument survives her appeal waiver, it is unpreserved for review due to her failure to move to withdraw her plea or vacate the judgment of conviction (see People v. Dixon, 62 A.D.3d 1214, 1214, 879 N.Y.S.2d 631 [2009];  People v. Grant, 60 A.D.3d 1202, 1202, 875 N.Y.S.2d 347 [2009] ).   Nor does the narrow exception to the preservation rule apply, as defendant made no statements during the plea allocution that called into question her guilt or the voluntariness of her plea (see People v. Dixon, 62 A.D.3d at 1214, 879 N.Y.S.2d 631).

 Similarly, while defendant's appeal waiver does not bar her ineffective assistance of counsel argument to the extent that it implicates the voluntariness of her plea, the lack of a motion to withdraw the plea or vacate the judgment of conviction leaves it unpreserved for review (see People v. Dobrouch, 59 A.D.3d 781, 781, 873 N.Y.S.2d 759 [2009], lv. denied 12 N.Y.3d 853, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ).   In any event, defendant stated during the plea colloquy that she understood the rights she was giving up, was satisfied with counsel's representation and had an adequate opportunity to confer with him, and we are satisfied that she received meaningful representation (see People v. Dixon, 62 A.D.3d at 1214-1215, 879 N.Y.S.2d 631;  People v. Cintron, 62 A.D.3d 1157, 1158, 881 N.Y.S.2d 183 [2009] ).

 Lastly, defendant's argument that the sentence was harsh and excessive is precluded by her valid appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Platero, 63 A.D.3d 1446, 1446, 880 N.Y.S.2d 591 [2009] ).

ORDERED that the judgment is affirmed.

KANE, J.

PETERS, J.P., SPAIN, ROSE and STEIN, JJ., concur.