PEOPLE v. FISKE (2009)

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered October 10, 2007, convicting defendant upon his plea of guilty of the crimes of manslaughter in the second degree and criminal sale of a controlled substance in the third degree.

Defendant was indicted on a variety of charges arising out of the stabbing death of an individual during a melee.   A second indictment was then handed up which charged defendant with selling cocaine on three occasions while awaiting trial on the first indictment.   In full satisfaction of both indictments, defendant pleaded guilty to manslaughter in the second degree and criminal sale of a controlled substance in the third degree.   County Court sentenced defendant, as set out in the plea agreement, to an aggregate prison term of 5 to 15 years and postrelease supervision of two years.   Defendant now appeals and we affirm.

 Defendant disputes the factual sufficiency of his plea allocution, but that issue is unpreserved due to his failure to move to withdraw his plea or vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Davis-Ivery, 59 A.D.3d 853, 854, 873 N.Y.S.2d 777 [2009] ).   A narrow exception to the preservation requirement does exist where statements made during a plea colloquy cast significant doubt on a defendant's guilt or the voluntariness of his or her plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Fauntleroy, 57 A.D.3d 1167, 1168, 869 N.Y.S.2d 655 [2008] ).   While defendant here stated that he did not remember whether or not he had stabbed the victim, he admitted that he attempted to grab the knife from another combatant and the victim was stabbed in the ensuing struggle, and his failure to expressly admit to stabbing the victim did not cast any doubt on his guilt such as to bring this case within the exception to the preservation requirement (see People v. Goldstein, 12 N.Y.3d 295, 300-301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009];  see e.g. People v. DeCapua, 37 A.D.3d 1189, 1189-1190, 829 N.Y.S.2d 799 [2007], lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663 [2007] ).

 Defendant's failure to move to withdraw his plea or vacate the judgment of conviction similarly renders his claim of ineffective assistance of counsel unpreserved to the extent that it relates to the voluntary nature of his plea (see People v. Maldonado, 61 A.D.3d 1220, 876 N.Y.S.2d 661 [2009];  People v. Thompkins, 58 A.D.3d 1068, 1068, 871 N.Y.S.2d 788 [2009], lv. denied 12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ).   Moreover, a number of defendant's claims involve matters outside of the record that are properly addressed in a CPL article 440 motion (see People v. Maldonado, 61 A.D.3d at 1220, 876 N.Y.S.2d 661).   Regardless, with regard to those matters on the record, defendant entered an advantageous plea which significantly reduced his sentencing exposure and unequivocally expressed in his plea colloquy his understanding of the terms of the plea agreement and a potential justification defense that he was giving up by pleading guilty, as well as his satisfaction with counsel, and we cannot say that counsel provided ineffective assistance (see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995];  People v. Singletary, 51 A.D.3d 1334, 1335, 858 N.Y.S.2d 483 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ).

Defendant's remaining challenge to his sentence as harsh and excessive has been reviewed and found to be wanting in merit.

ORDERED that the judgment is affirmed.

LAHTINEN, J.

PETERS, J.P., SPAIN, KANE and MALONE JR., JJ., concur.