PEOPLE v. TERRY

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

The PEOPLE of the State of New York, Respondent, v. Dean TERRY, Appellant.

Decided: October 30, 2008

Before:  MERCURE, J.P., PETERS, SPAIN, MALONE JR. and STEIN, JJ. Susan T. Aron, Voorheesville, for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 23, 2007, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Resolving a three-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree.   In accordance with the plea agreement, County Court thereafter sentenced defendant, as a second felony offender, to 4 1/212 years in prison and two years of postrelease supervision.   Defendant now appeals and, initially, we note that defendant's waiver of his right to appeal, as explained by County Court during the plea colloquy, does not bar his claims herein.   Nevertheless, his arguments provide no basis for reversal.

 Defendant's assertion that his plea was involuntarily entered is unpreserved for our review in light of his failure to advance, in a motion to withdraw his guilty plea or vacate the judgment of conviction, the particular arguments now made before us (see People v. Perry, 50 A.D.3d 1244, 1245, 855 N.Y.S.2d 733 [2008], lv. denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453 [2008] ).   Moreover, nothing in the plea colloquy negated an essential element of the crime or otherwise cast doubt upon his guilt so as to trigger the exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Sinclair, 48 A.D.3d 974, 975, 852 N.Y.S.2d 448 [2008] ).   Defendant's allegation that he was deprived of the effective assistance of counsel is also unavailing.   Defense counsel negotiated a favorable plea which reduced defendant's prison exposure, nothing in the record cast doubt on counsel's apparent effectiveness and, during the plea colloquy, defendant indicated that he was satisfied with the legal services provided to him (see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995];  People v. Lahon, 17 A.D.3d 778, 779-780, 793 N.Y.S.2d 238 [2005], lv. denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671 [2005] ).   Accordingly, the judgment is affirmed.

ORDERED that the judgment is affirmed.

MERCURE, J.P.

PETERS, SPAIN, MALONE JR. and STEIN, JJ., concur.

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