                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     105604
________________________________

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

DAVID E. BARNES,
                    Appellant.
________________________________


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.

                             __________


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
