| People v Luster |
| 2007 NY Slip Op 09422 [45 AD3d 866] |
| November 27, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Bernard Luster, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y.Brodt of counsel; Lorrie A. Zinno on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered June 20, 2005, convicting him of rape in the first degree, upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that his plea of guiltyand waiver of the right to appeal were not intelligently, knowingly, and voluntarily made (CPL470.05 [2]; see People v Ramos, 7NY3d 737 [2006]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Mitchell, 22 AD3d 769[2005]; People v Hull, 300 AD2d 411 [2002]). While there is an exception to thispreservation requirement when a defendant's recitation of the facts negates an essential elementof the crime, or casts significant doubt on his guilt (see People v Lopez, 71 NY2d 662,666 [1988]), this exception does not apply here because the defendant's factual recitation did notnegate an essential element of rape in the first degree or cast significant doubt on his guilt.
In any event, the defendant's claim that his plea and waiver were not intelligently, knowingly,and voluntarily made because the court failed to specifically enumerate all of the rights to whichhe was entitled is without merit (seePeople v Watson, 19 AD3d 518 [2005]). The Court of Appeals has consistently heldthat there is no "uniform mandatory catechism of pleading defendants" (People v Nixon,21 NY2d 338, 353 [1967], cert denied sub nom. Robinson v New York, 393 US1067 [1969]; see People v Seeber, 4NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 543 [1993];People v Harris, 61 [*2]NY2d 9 [1983]). "Moreover, thedefendant acknowledged that he discussed the plea and waiver with his attorney, executed thewaiver in open court, and indicated his understanding of the nature and consequences of therights that he waived" (People vSilent, 37 AD3d 625, 625 [2007]; see People v Reynolds, 27 AD3d 668, 669 [2006]; People v Torres, 24 AD3d 692[2005]).
Further, the defendant's valid waiver of his right to appeal precludes review of his challengeto the sentence as excessive (see Peoplev Lopez, 6 NY3d 248, 264 [2006]; People v Lococo, 92 NY2d 825, 827 [1998];People v Hidalgo, 91 NY2d 733, 737 [1998]). Spolzino, J.P., Krausman, Goldstein andDickerson, JJ., concur.