PEOPLE v. LABARGE

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

The PEOPLE of the State of New York, Respondent, v. David E. LABARGE Jr., Appellant.

Decided: December 30, 2004

Before:  MERCURE, J.P., CREW III, SPAIN, CARPINELLO and KANE, JJ. Jeffrey H. Pearlman, Albany, for appellant. Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered August 4, 2003, convicting defendant upon his plea of guilty of the crimes of robbery in the first degree and criminal use of a firearm in the first degree.

Defendant was charged with numerous crimes stemming from his participation in an armed robbery.   Pursuant to a negotiated plea agreement, he pleaded guilty to the crimes of robbery in the first degree and criminal use of a firearm in the first degree with the understanding that he would be sentenced to concurrent prison terms in the range of five to seven years, followed by a period of postrelease supervision.   As part of the guilty plea, defendant waived his right to appeal with the exception of sentencing and constitutional issues.   County Court thereafter sentenced defendant to concurrent prison terms of seven years, followed by a five-year period of postrelease supervision.   Defendant appeals, contending that he did not receive the effective assistance of counsel and his sentence is harsh and excessive.

 Initially, we note that although defendant's waiver of his right to appeal does not preclude his challenge to the effectiveness of his counsel insofar as his claims implicate the voluntariness of his plea (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];  People v. Lee, 272 A.D.2d 785, 785, 709 N.Y.S.2d 454 [2000], lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370 [2000];  cf. People v. Almonte, 288 A.D.2d 632, 633, 732 N.Y.S.2d 705 [2001], lvs. denied 97 N.Y.2d 726, 727, 740 N.Y.S.2d 699, 699, 767 N.E.2d 156, 156 [2002] ), defendant's failure to move to vacate the judgment of conviction or to withdraw his guilty plea renders this argument unpreserved for our review (see People v. Smith, 300 A.D.2d 745, 745, 751 N.Y.S.2d 665 [2002], lvs. denied 99 N.Y.2d 616, 620, 757 N.Y.S.2d 826, 831, 787 N.E.2d 1172, 1177 [2003];  People v. Soto, 259 A.D.2d 904, 905, 686 N.Y.S.2d 897 [1999] ).   Moreover, we find no circumstances that would warrant the exercise of our interest of justice jurisdiction.   Defendant's claim that he was given only a minimal amount of time to consider the plea offer is flatly contradicted by evidence in the record demonstrating that the offer was held open to defendant for several months.   Finally, although defendant did not waive his right to appeal his sentence (cf. People v. Clow, 10 A.D.3d 803, 804-805, 782 N.Y.S.2d 148 [2004] ), his contention that the sentence is harsh and excessive is meritless.

ORDERED that the judgment is affirmed.

MERCURE, J.P.

CREW III, SPAIN, CARPINELLO and KANE, JJ., concur.

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