People v. Wallace

May 11, 2006
Versions:

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 7, 2005, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

While on parole for a prior burglary adjudication, defendant was arrested after he forcibly entered a store in the early morning hours of January 23, 2005 and stole money and food. He waived indictment and agreed to be prosecuted by a superior court information charging him with burglary in the third degree. Defendant pleaded guilty to the charge and waived his right to appeal. County Court did not promise a specific sentence as part of the plea agreement, but agreed that the sentence would not exceed 1 1/3 to 4 years in prison. Defendant was sentenced to 1 1/3 to 4 years in prison and now appeals.

Initially, defendant contends that he was denied the right to make a statement at sentencing pursuant to CPL 380.50 (1). However, inasmuch as defense counsel did not request that defendant be afforded an opportunity to speak or bring such omission to County Court’s attention, this claim has not been preserved for our review (see People v Green, 54 NY2d 878, 879 [1981]; People v Defayette, 241 AD2d 761, 762 [1997], lv denied 90 NY2d 939 [1997]). Furthermore, given that defendant entered a knowing, voluntary and intelligent guilty plea and waiver of appeal, we decline to address his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 255-256 [2006]; People v Clow, 10 AD3d 803, 804 [2004]).

Mercure, J.P., Crew III, Peters, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.