| People v Walker |
| 2008 NY Slip Op 00004 [47 AD3d 965] |
| January 3, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DayvonWalker, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Anne L.V. Coonrad of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.),rendered November 18, 2005, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the third degree.
Pursuant to an agreement, defendant waived indictment and pleaded guilty to a superior courtinformation charging him with criminal possession of a weapon in the third degree. He signed awritten waiver of appeal and County Court sentenced him, as agreed, to two years in prison andthree years of postrelease supervision. Defendant now appeals.
We affirm. Given defendant's failure to move to withdraw his plea or vacate the judgment ofconviction, his challenge to the voluntariness of his plea and waiver of the right to appeal werenot preserved for our review (see Peoplev Sawyer, 41 AD3d 1089, 1090 [2007]; People v Missimer, 32 AD3d 1114, 1114-1115 [2006], lvdenied 7 NY3d 927 [2006]). In any event, we find—from the record of County Court'scolloquy at the time of defendant's plea and the contents of the signed waiver—thatdefendant effectively waived the right to appeal (see People v Calvi, 89 NY2d 868, 871[1996]; People v Callahan, 80 NY2d 273, 283 [1992]; People v Seaberg, 74NY2d 1, 11 [1989]).[*2]
Given his valid appeal waiver, defendant's challenges tothe factual sufficiency of his recitation during the plea and to the sentence as harsh and excessiveare foreclosed (see People v Lopez,6 NY3d 248, 255-256 [2006]; People v Morgan, 39 AD3d 889, 889 [2007], lv denied 9NY3d 848 [2007]). Defendant's contentions regarding the voluntariness of his plea, while notprecluded by his appeal waiver, lack merit (see People v Turner, 27 AD3d 962, 962 [2006]). After CountyCourt advised him of the trial-related rights he would be foregoing if he were to enter a guiltyplea and of the consequences of such a plea, defendant entered a guilty plea, admitting that hepossessed a loaded .22 caliber pistol while walking on a street in the City of Rensselaer,Rensselaer County, as charged in the superior court information (see Penal Law §265.02 [4] [repealed in 2006]). Further, defendant made no statements during the colloquy whichcast doubt upon his guilt, negated an element of the crime or raised concerns about thevoluntariness of his plea so as to require further inquiry by the court (see People v Lopez,71 NY2d 662, 666 [1988]; People v Turner, 27 AD3d at 962). Thus, the record reflectsthat defendant's plea was voluntary, knowing and intelligent (see People v Longshore, 86NY2d 851, 852 [1995]; People vLewis, 39 AD3d 1025, 1025 [2007]; People v Rowland, 14 AD3d 886, 887 [2005]).
Cardona, P.J., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.