| People v Greeman |
| 2008 NY Slip Op 02753 [49 AD3d 463] |
| March 27, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edward Greeman, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered January 31,2007, convicting defendant, upon his plea of guilty, of criminal tampering in the first degree andcriminal possession of a forged instrument in the second degree, and sentencing him toconcurrent terms of six months, unanimously affirmed.
Defendant made a valid waiver of his right to appeal (see People v Lopez, 6 NY3d 248, 256-257 [2006]), after a colloquyin which the court clearly explained to him that the waiver was separate from the rightsautomatically forfeited by a guilty plea, and that it encompassed the very issue he now seeks toraise concerning his forged instrument conviction. In any event, regardless of whether defendantvalidly waived his right to appeal, his claim that he pleaded guilty to a "nonexistent crime" hasbeen waived for an independent reason. Criminal possession of a forged instrument in the seconddegree (Penal Law § 170.25) is not "nonexistent." Defendant is essentially claiming thatthe instrument he possessed, a bent MetroCard, did not satisfy the forgery statute. To the extentdefendant is thus challenging the sufficiency of the evidence that was before the grand jury andwould have been presented had he gone to trial, that claim is foreclosed by a guilty plea(People v Taylor, 65 NY2d 1 [1985]; People v Thomas, 53 NY2d 338 [1981]).To the extent defendant is challenging the sufficiency of his plea allocution, that claim isunpreserved and we decline to review it in the interest of justice; the narrow exception to thepreservation rule explained in People v Lopez (71 NY2d 662, 665-666 [1988]) does notapply [*2]since defendant's factual recitation did not negate anyelement of the crime or cast significant doubt on his guilt. Concur—Friedman, J.P.,Gonzalez, McGuire and Moskowitz, JJ.