PEOPLE v. DANIELS

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

The PEOPLE of the State of New York, Respondent, v. David R. DANIELS, Appellant.

Decided: July 28, 2011

Before MERCURE, J.P., LAHTINEN, MALONE JR., KAVANAGH and EGAN JR., JJ. Justin C. Brusgul, Voorheesville, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered June 12, 2009, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.

Defendant was charged in an indictment with alcohol-related driving offenses.   He was to take part in Steuben County Drug Court to address unrelated criminal charges in that county.   As such, he pleaded guilty to one count of driving while intoxicated and was to be sentenced to probation, a special condition of which was to be his successful completion of Drug Court.   Defendant failed to participate in Drug Court and, given County Court's unwillingness to sentence him to probation, he withdrew his guilty plea.   County Court then committed to a sentence of one year in jail, and defendant successfully sought to have his guilty plea restored.   County Court imposed the agreed-upon jail sentence, and defendant now appeals.

 We affirm.   Defendant's challenge to the sufficiency of his plea allocution is unpreserved due to his failure to move to withdraw the plea or vacate the judgment of conviction, and this case does not fall within the narrow exception to the preservation rule (see People v. Louree, 8 N.Y.3d 541, 545, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007];  People v. Thomas, 63 A.D.3d 642, 642, 882 N.Y.S.2d 99 [2009], lvs. denied 13 N.Y.3d 862, 863, 891 N.Y.S.2d 696, 920 N.E.2d 101 [2009] ).   In any event, defendant's second guilty plea only differed from the first in the sentence to be imposed, and County Court “validly incorporated by reference the full allocution ․ that had been conducted at the first plea proceeding” (People v. Thomas, 63 A.D.3d at 642, 882 N.Y.S.2d 99;  see People v. Elkin, 154 A.D.2d 936, 545 N.Y.S.2d 881 [1989], lv. denied 74 N.Y.2d 947, 550 N.Y.S.2d 282, 549 N.E.2d 484 [1989] ).

 As a final matter, we have examined and are unpersuaded by defendant's claim that the sentence imposed was harsh and excessive.

ORDERED that the judgment is affirmed.

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