State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 31, 2014 105604 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

DAVID E. BARNES,

Appellant.

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Calendar Date: June 4, 2014

Before: Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

__________

George P. Ferro, Albany, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp

of counsel), for respondent.

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Stein, J.

Appeal from a judgment of the County Court of Albany County

(Herrick, J.), rendered July 27, 2012, convicting defendant upon

his plea of guilty of the crimes of offering a false instrument

for filing in the first degree, driving while intoxicated and

aggravated unlicensed operation of a motor vehicle in the second

degree.

Pursuant to a negotiated plea agreement, defendant waived

indictment and pleaded guilty to offering a false instrument for

filing in the first degree, as charged in a superior court

information. During the plea colloquy, defendant admitted that

he had knowingly submitted a false statement to the Department of

Motor Vehicles. Defendant concomitantly entered a guilty plea to

two misdemeanor charges in satisfaction of a pending indictment,
-2- 105604 

and waived his right to appeal. In exchange, he was promised a

sentence of time served followed by five years of probation, so

long as he abided by the terms of the plea agreement. After

defendant violated the plea agreement by not cooperating with the

Probation Department and failing to appear at the scheduled

violation hearing, County Court, among other things, imposed

various terms of imprisonment, the longest of which was 1 to 3

years. Defendant now appeals.

We affirm. Defendant argues that his guilty plea should be

vacated because it was not knowing or voluntary. While this

challenge to the voluntariness of the plea may be raised

notwithstanding his uncontested appeal waiver (see People v

Seaberg, 74 NY2d 1, 11 [1989]; People v Moses, 110 AD3d 1118,

1118 [2013]), it was not preserved for appellate review by a

motion to withdraw his guilty plea (see People v Watson, 115 AD3d

1016, 1017 [2014]). We are not persuaded by defendant's central

contention that his statements during the plea colloquy cast

doubt on his guilt or on the voluntariness of his guilty plea so

as to implicate the exception to the preservation requirement

(see People v Lopez, 71 NY2d 662, 666 [1988]; People v Newton,

113 AD3d 1000, 1001 [2014]; People v Wilson, 101 AD3d 1248, 1249

[2012]). Rather, the record reflects that County Court conducted

a thorough inquiry in which it explained the complete terms of

the plea agreement, the trial-related rights that defendant would

be forgoing and the consequences of a guilty plea, and afforded

defendant an opportunity to confer with counsel, and defendant

repeatedly elicited that he understood the proceedings as they

progressed and had sufficient time to discuss the matter with

counsel. Defendant unequivocally admitted both the conduct

underlying the charges and that he was pleading guilty because he

was, in fact, guilty, and freely entered a guilty plea as to each

charge. Therefore, defendant's challenge to the plea is

unavailing.

Peters, P.J., Rose, Egan Jr. and Clark, JJ., concur.
-3- 105604 

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court