| People v Martin |
| 2007 NY Slip Op 07122 [43 AD3d 1316] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Matthew D.Martin, Appellant. |
—[*1] Susan H. Lindenmuth, District Attorney, Penn Yan (Jason L. Cook of counsel), forrespondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), renderedFebruary 28, 2006. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of stolen property in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of stolen property in the third degree (Penal Law § 165.50). Althoughthe contention of defendant that his plea was not knowingly, voluntarily and intelligently enteredsurvives his waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989];People v Bland, 27 AD3d 1052[2006], lv denied 6 NY3d 892 [2006]), defendant failed to preserve that contention forour review by moving to withdraw his plea or to vacate the judgment of conviction (see People v Aguayo, 37 AD3d1081 [2007], lv denied 8 NY3d 981 [2007]; Bland, 27 AD2d 1052).Defendant further contends that he did not move to withdraw his plea based on the statement ofCounty Court that, if he were to do so, the court would have to consider the fact that defendantpleaded guilty while under oath, "which then raises a possible perjury charge." We reject thatcontention. The record establishes that defendant's decision not to move to withdraw the plea wasmade upon the advice of defense counsel well before the court made that statement. In any event,we conclude that the plea was knowingly, voluntarily and intelligently entered. Finally, defendantcontends that the observation of the police that the vehicle identification number had beenremoved from the camper in which he was residing constituted a warrantless search of thatcamper and thus that the court erred in refusing to suppress the evidence. The valid waiver bydefendant of the right to appeal encompasses that contention, however, and we therefore do notaddress it (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Hernandez, 21 AD3d1214 [2005], lv denied 5 NY3d 883 [2005]; People v Lopez, 8 AD3d 819, 820 [2004], lv denied 3NY3d 708). Present—Scudder, P.J., Martoche, Lunn, Peradotto and Green, JJ.