                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   July 21, 2016                   107307
                                                       107614
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ALLEN FOREST,
                    Appellant.
________________________________


Calendar Date:   May 26, 2016

Before:   Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                             __________


     Pamela B. Bleiwas, Ithaca, for appellant.

      Gwen Wilkinson, District Attorney, Ithaca (Eliza Filipowski
of counsel), for respondent.

                             __________


Clark, J.

      Appeals (1) from a judgment of the County Court of Tompkins
County (Cassidy, J.), rendered October 29, 2014, convicting
defendant upon his plea of guilty of the crime of forgery in the
second degree, and (2) by permission, from an order of said
court, entered May 12, 2015, which denied defendant's motion
pursuant to CPL 440.10 to vacate the judgment of conviction,
without a hearing.

      In satisfaction of a five-count indictment stemming from
defendant's use of a stolen credit card to make unauthorized
purchases at two convenience stores, defendant pleaded guilty to
the crime of forgery in the second degree, admitting that he
signed the cardholder's name without permission. The plea
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agreement provided that defendant would successfully complete
drug treatment and then enter the Judicial Diversion Program
(hereinafter JDP) (see CPL 216.05) and that, upon his successful
completion of the JDP, he could withdraw his guilty plea and
enter a plea to a misdemeanor. The agreement contemplated that
if defendant failed to abide by the conditions of the JDP, he
could be sentenced, as a second felony offender, to a prison term
up to 3½ to 7 years. Pursuant to the agreement, defendant signed
a plea memorandum outlining those plea terms, admitted his
predicate felony and agreed to waive his right to appeal. He
successfully completed substance abuse treatment, was accepted
into the JDP and signed a JDP contract. In September 2014,
defendant admitted that he had absconded from the drug court
program and violated the JDP contract conditions by failing to
report to drug court and by using drugs. County Court terminated
him from the JDP and imposed a prison sentence of 3 to 6 years.
Defendant's subsequent motion pursuant to CPL 440.10 to vacate
the judgment was denied. Defendant now appeals from the judgment
and, with permission, from the order denying his motion to
vacate.

      Defendant's contention that his guilty plea was not knowing
and voluntary, which survives the unchallenged appeal waiver (see
People v Moulton, 134 AD3d 1251, 1252 [2015]), was not preserved
for our review by an appropriate postallocution motion pursuant
to CPL 220.60 (3), despite ample opportunity to do so within the
many months between his guilty plea and sentencing (see People v
Labaff, 127 AD3d 1471, 1471 [2015], lv denied 26 NY3d 931 [2015];
People v Disotell, 123 AD3d 1230, 1231 [2014], lv denied 25 NY3d
1162 [2015]; see also People v Conceicao, 26 NY3d 375, 382
[2015]; People v Tyrell, 22 NY3d 359, 363-364 [2013]; People v
Peque, 22 NY3d 168, 182 [2013]). A review of the plea allocution
discloses that defendant did not say anything that raised
significant doubt as to his guilt or called into question the
voluntariness of his guilty plea so as to bring this case within
the narrow exception to the preservation requirement (see People
v Lopez, 71 NY2d 662, 665-666 [1988]; People v Disotell, 123 AD3d
at 1231; see also People v Williams, 27 NY3d 212, 220 [2016]).

     Next, defendant's motion to vacate the judgment was
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premised upon the claim that, as relevant here, his guilty plea
was not knowing and voluntary as a result of ineffective
assistance of counsel, in that counsel failed to disclose to him
(or the prosecutor) that a witness had signed an exculpatory
affidavit prior to his guilty plea. Specifically, the witness
asserted that she had reviewed a photo supplied by the People,
taken from the convenience store surveillance video, and that the
woman depicted therein was her but that the man next to her in
the photo was not defendant, who she knew, and that she did not
witness him use a stolen credit card on that day. Initially,
while defendant claimed in his affidavit in support of the motion
that counsel did not disclose the affidavit to him, he did not
allege that he was unaware of it, and his letter to counsel
submitted in support of the motion suggests that he was aware of
it. Even assuming that defendant was unaware of the affidavit, a
letter to defendant from defense counsel explained that the
purpose of the affidavit was to impeach the witness if she were
called by the People to testify; as the charges were resolved
with a plea, there was no need to admit the affidavit into
evidence.1 Notably, two police officers identified defendant as
the person in the surveillance video and, when confronted with
pictures taken from that video, defendant admitted that it was
him depicted in that video and that he had made purchases at the
convenience store that day, and he later disclosed that he had
obtained the credit card from "a girl." In view of this strong
evidence of guilt, and given that the record establishes that
defendant received a favorable plea agreement that would have
allowed him to avoid a felony conviction and prison had he
complied with the drug court conditions, we are unpersuaded that
his guilty plea was not knowing or voluntary due to any
ineffective assistance of counsel or that he would not have
pleaded guilty had he known about the affidavit (see People v


    1
        The evidence established that defense counsel had
informed the prosecutor about this affidavit. Given that
defendant did not establish that his plea was procured by
misrepresentation or fraud "on the part of the court or a
prosecutor" (CPL 440.10 [1] [b]), this aspect of his motion to
vacate was properly denied.
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                                                   107614

Soprano, 135 AD3d 1243, 1243 [2016], lv denied 27 NY3d 1007
[2016]; People v Gonzalez, 130 AD3d 1089, 1090 [2015]).
Accordingly, County Court properly denied defendant's motion to
vacate premised upon CPL 440.10 (1) (h).

     Lahtinen, J.P., Rose, Lynch and Aarons, JJ., concur.



     ORDERED that the judgment and order are affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
