PEOPLE v. PRINGLE

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Gregory PRINGLE, Appellant.

Decided: September 30, 2004

Before:  CREW III, J.P., PETERS, CARPINELLO, MUGGLIN and LAHTINEN, JJ. Eugene P. Devine, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. Paul A. Clyne, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Lamont J.), rendered June 4, 2001 in Albany County, convicting defendant upon of his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.

In satisfaction of a three-count indictment, defendant pleaded guilty to the crime of attempted criminal possession of a controlled substance in the third degree and was thereafter sentenced to a prison term of 3 to 9 years.   Defendant appeals.

 At the outset, we note that defendant's failure to move to withdraw his plea or vacate the judgment of conviction renders his current attack on the voluntariness of the plea unpreserved for our review (see People v. Smith, 305 A.D.2d 853, 854, 758 N.Y.S.2d 873 [2003], lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 408, 799 N.E.2d 631 [2003];  People v. Kemp, 288 A.D.2d 635, 635, 732 N.Y.S.2d 694 [2001] ).   Were we to reach the issue, our examination of the plea minutes reveals that Supreme Court conducted a thorough and proper colloquy, during which it ascertained that defendant was entering the plea free of duress or any condition that would hamper his understanding or willingness to accept the consequences thereof, he had discussed the matter at length with his retained counsel and was satisfied with the services he provided, and he freely and unequivocally admitted to facts establishing the elements of the crime for which he was entering the plea (see Penal Law §§ 110.00, 220.16;   People v. Smith, supra at 854, 758 N.Y.S.2d 873;  People v. McWhite, 295 A.D.2d 757, 758, 744 N.Y.S.2d 532 [2002] ).   In response to defendant's challenge to the factual sufficiency of the plea, we note that there is no requirement that defendant personally recite the facts underlying his crime (see People v. Kinch, 237 A.D.2d 830, 831, 655 N.Y.S.2d 191 [1997], lv. denied 90 N.Y.2d 860, 661 N.Y.S.2d 186, 683 N.E.2d 1060 [1997] ), particularly where, as here, defendant's affirmative answers during Supreme Court's inquiry therein neither cast doubt on his guilt nor otherwise raised any issues regarding the voluntariness of his plea (see People v. Lind, 298 A.D.2d 765, 766, 748 N.Y.S.2d 703 [2002], lv. denied 99 N.Y.2d 616, 757 N.Y.S.2d 827, 787 N.E.2d 1173 [2003] ).   Defendant's additional argument that defense counsel's failure to investigate possible defenses impacted the voluntariness of his plea finds no support in the record and, in any event, is belied by defendant's own statements that he had fully discussed his options with his counsel to his satisfaction (see People v. Anderson, 304 A.D.2d 975, 976, 756 N.Y.S.2d 916 [2003], lv. denied 100 N.Y.2d 578, 764 N.Y.S.2d 388, 796 N.E.2d 480 [2003];  People v. Camp, 302 A.D.2d 629, 630, 753 N.Y.S.2d 765 [2003], lv. denied 100 N.Y.2d 593, 766 N.Y.S.2d 168, 798 N.E.2d 352 [2003] ).   Finding no basis for determining that the plea was anything but knowing, voluntary and intelligent, we decline to disturb it (see People v. Donaldson, 1 A.D.3d 800, 800-801, 767 N.Y.S.2d 293 [2003], lv. denied 2 N.Y.3d 739, 778 N.Y.S.2d 465, 810 N.E.2d 918 [2004] ).

Defendant's remaining argument that his sentence was harsh and excessive is precluded by his general waiver of his right to appeal (see People v. Hidalgo, 91 N.Y.2d 733, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Varno, 297 A.D.2d 873, 874, 747 N.Y.S.2d 261 [2002], lv. denied 99 N.Y.2d 565, 754 N.Y.S.2d 218, 784 N.E.2d 91 [2002] ).

ORDERED that the judgment is affirmed.

PETERS, J.

CREW III, J.P., CARPINELLO, MUGGLIN and LAHTINEN, JJ., concur.

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