PEOPLE v. PRIESTER

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

The PEOPLE of the State of New York, Respondent, v. Travis PRIESTER, Appellant.

Decided: November 25, 1998

Before CARDONA, P.J., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ. Douglas L. Goldman, Albany, for appellant. Robert M. Carney, District Attorney (Alfred D. Chapleau of counsel), Schenectady, for respondent.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered May 9, 1997, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.

Defendant was charged with two counts of criminal possession of a controlled substance in the third degree.   Following the denial of his motion to dismiss the indictment for the People's failure to give notice of its motion to amend the indictment to correct a typographical error, defendant pleaded guilty to one count of attempted criminal possession of a controlled substance in the third degree in full satisfaction of the indictment and waived his right to appeal.   Defendant was sentenced in accordance with the plea agreement to one year in jail and this appeal ensued.

 We affirm.   Initially, defendant argues that his guilty plea was involuntary because he was not informed that the waiver of his right to appeal included a waiver to appeal from County Court's ruling on the People's motion to amend the indictment.   Given that defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction, however, this issue is not preserved for our review (see, People v. Smith, 248 A.D.2d 891, 892, 669 N.Y.S.2d 986, 987;  People v. Johnson, 243 A.D.2d 997, 998, 663 N.Y.S.2d 910, lv. denied 91 N.Y.2d 926, 670 N.Y.S.2d 408, 693 N.E.2d 755).   Nevertheless, were we to consider defendant's contention, we would find it to be without merit inasmuch as the written waiver of appeal which defendant signed as a part of the negotiated plea agreement expressly stated that he was waiving his right to appeal from any court ruling made in connection with his case and that the waiver was voluntarily executed (see, People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Harris, 242 A.D.2d 782, 661 N.Y.S.2d 315, lvs. denied 91 N.Y.2d 1004, 1008, 676 N.Y.S.2d 132, 136, 698 N.E.2d 961, 965).

 Finally, having entered a voluntary plea of guilty, defendant waived any alleged error made by County Court in permitting amendment of the indictment (see, People v. Gauthier, 246 A.D.2d 928, 667 N.Y.S.2d 866, lv. denied 92 N.Y.2d 852, 677 N.Y.S.2d 82, 699 N.E.2d 442;  People v. Hunt, 148 A.D.2d 836, 837, 539 N.Y.S.2d 109, lv. denied 74 N.Y.2d 665, 543 N.Y.S.2d 407, 541 N.E.2d 436).   The remaining contentions advanced by defendant have been reviewed and found to be lacking in merit.

ORDERED that the judgment is affirmed.

SPAIN, J.

CARDONA, P.J., and PETERS, CARPINELLO and GRAFFEO, JJ., concur.

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