PEOPLE v. ROBETOY

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

The PEOPLE of the State of New York, Respondent, v. Andrea ROBETOY, Appellant.

Decided: September 29, 2005

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

Appeal from a judgment of the Supreme Court (Teresi, J.), rendered April 14, 2003 in Albany County, convicting defendant upon her plea of guilty of the crime of attempted criminal possession of a forged instrument in the second degree.

Defendant waived indictment and agreed to be prosecuted by superior court information charging her with attempted criminal possession of a forged instrument in the second degree.   Defendant, waiving her right to appeal, pleaded guilty as charged and was sentenced as a second felony offender in accordance with the plea agreement to a sentence of 1 1/212 to 3 years to run concurrently with a 10-year sentence from another county.   This appeal ensued.

 Although not precluded by her waiver of the right to appeal, defendant nevertheless has failed to preserve for our review the validity of the plea inasmuch as she failed to move to withdraw her plea or vacate the judgment of conviction (see People v. Threatt, 16 A.D.3d 706, 790 N.Y.S.2d 304 [2005];  People v. Moore, 8 A.D.3d 750, 777 N.Y.S.2d 923 [2004];  People v. Perry, 4 A.D.3d 618, 619, 772 N.Y.S.2d 383 [2004], lv. denied 2 N.Y.3d 804, 781 N.Y.S.2d 303, 814 N.E.2d 475 [2004] ).   In any event, our review of the plea colloquy reveals that defendant entered a knowing, voluntary and intelligent plea (see People v. Kemp, 10 A.D.3d 811, 781 N.Y.S.2d 919 [2004], lv. denied 4 N.Y.3d 765, 792 N.Y.S.2d 8, 825 N.E.2d 140 [2005] ).   Before pleading guilty, defendant acknowledged that she understood the consequences of the plea and the rights she was relinquishing.   She also confirmed that she had enough time to speak with her attorney and was satisfied with the representation provided.   Affirming that she was entering into the plea freely and voluntarily, defendant then admitted committing the crime charged, explaining how the crime was perpetrated.  “[D]efendant's affirmative responses to County Court's questions established the elements of the crime [ ] charged and there is no indication in the record that the voluntary plea was baseless or improvident” (People v. Kemp, 288 A.D.2d 635, 636, 732 N.Y.S.2d 694 [2001];  see People v. Mondore, 18 A.D.3d 961, 962, 794 N.Y.S.2d 718 [2005] ).

Finally, defendant's challenge to the severity of her sentence will not be reviewed inasmuch as she knowingly, voluntarily and intelligently entered both the plea and waiver of the right to appeal (see People v. Rogers, 15 A.D.3d 682, 788 N.Y.S.2d 716 [2005];  People v. Clow, 10 A.D.3d 803, 782 N.Y.S.2d 148 [2004] ).

ORDERED that the judgment is affirmed.

LAHTINEN, J.

CREW III, J.P., PETERS, MUGGLIN and ROSE, JJ., concur.

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