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Published by Ryan Chatelain

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Published by: Ryan Chatelain on Dec 18, 2012
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State of New York Supreme Court, Appellate Division Third Judicial Department
Decided and Entered: December 13, 2012104209________________________________THE PEOPLE OF THE STATE OFNEW YORK,Respondent,vMEMORANDUM AND ORDERHERBERT FERRO, Appellant.________________________________Calendar Date: November 13, 2012Before: Mercure, J.P., Lahtinen, Malone Jr., Stein andGarry, JJ.__________Barrett D. Mack, Valatie, for appellant.D. Holley Carnright, District Attorney, Kingston (JoanGudesblatt Lamb of counsel), for respondent.__________Stein, J. Appeal from a judgment of the County Court of Ulster County(Ceresia, J.), rendered March 25, 2011, convicting defendant uponhis plea of guilty of the crime of course of sexual conductagainst a child in the first degree.In satisfaction of a four-count indictment, defendantpleaded guilty to one count of course of sexual conduct against achild in the first degree. County Court sentenced him, asagreed, to a prison term of 12 years to be followed by five yearsof postrelease supervision. Defendant now appeals, arguing thatthe record does not demonstrate a knowing, voluntary andintelligent plea or waiver of his right to appeal. We disagreeand affirm.
-2-104209Initially, defendant's challenge to the voluntariness andfacial sufficiency of his plea is not preserved for our review,as the record before us fails to indicate that he moved towithdraw his plea or vacate the judgment of conviction(see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Teele,92 AD3d 972, 972 [2012]). The narrow exception to thepreservation requirement does not apply here, as County Court didnot "accept[] a plea without further inquiry after the allocutionclearly cast[] significant doubt upon the defendant's guilt orotherwise call[ed] into question the voluntariness of the plea"(People v Washington, 262 AD2d 868, 869 [1999], lv denied 93 NY2d1029 [1999]; see People v Lopez, 71 NY2d at 666). Defendantnever claimed to be wholly innocent of the charges against him,but did state during the plea colloquy that he had not engaged inthe requisite two acts of sexual conduct with the victim(see Penal Law § 130.75 [1]). County Court fulfilled itsobligation to inquire further, however, ensuring that defendanthad fully consulted with defense counsel and understood thequestion being posed, then eliciting his admission that he hadengaged in two such acts (see People v Edwards, 55 AD3d 1337,1338 [2008], lv denied 11 NY3d 924 [2009]; People v Tavares, 282 AD2d 880, 881 [2001], lv denied 96 NY2d 868 [2001]; People v Washington, 262 AD2d at 869-870).Inasmuch as defendant also confirmed during the pleacolloquy that he understood his appeal rights and wished to waivethem, then executed a detailed written appeal waiver, we furtherconclude that he validly waived his right to appeal from theconviction and sentence (see People v Lewis, 95 AD3d 1442, 1443[2012], lv denied 19 NY3d 998 [2012]). Contrary to defendant'sclaim, his assertion that the sentence imposed was harsh andexcessive is precluded by that waiver (see People v Lopez, 6 NY3d248, 255 [2006]; People v Lewis, 95 AD3d at 1443).Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur.

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