People v. Crooks

278 A.D.2d 931, 718 N.Y.S.2d 925

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2000
• Docket: Appeal No. 1
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant failed to move to withdraw his plea of guilty or to vacate the judgment convicting him of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c]) and thus failed to preserve for our review his contention that the plea allocution was factually insufficient (see, People v Toxey, 86 NY2d 725, 726, rearg denied 86 NY2d 839). Contrary to defendant’s contention, County Court properly accepted the plea without conducting further inquiry to ensure that defendant was waiving an alleged defense to the charge. Because defendant’s recitation of the facts did not negate an essential element of the crime to which he pleaded guilty, the narrow exception to the preservation requirement does not apply (see, People v Lopez, 71 NY2d 662, 666-667).

The valid waiver by defendant of the right to appeal encompasses his contention concerning the severity of the sentence (see, People v Hidalgo, 91 NY2d 733, 737; see also, People v Lococo, 92 NY2d 825, 827). In any event, the sentence, to which defendant agreed as part of the plea bargain, is not unduly harsh or severe (see, People v Welsher, 270 AD2d 839, lv denied 95 NY2d 806; People v Cotton, 219 AD2d 836, 837, lv denied 87 NY2d 900). Contrary to the further contention of defendant, the record establishes that he received effective assistance of counsel (see, People v Baldi, 54 NY2d 137, 147). (Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Felony Driving While Intoxicated.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Lawton, JJ.