| People v Kearns |
| 2008 NY Slip Op 03771 [50 AD3d 1514] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey M.Kearns, 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.), renderedNovember 28, 2006. The judgment convicted defendant, upon his plea of guilty, of sexual abusein the first degree (two counts) and forcible touching.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of two counts of sexual abuse in the first degree (Penal Law § 130.65 [1]) and one count offorcible touching (§ 130.52). Contrary to the contention of defendant, his waiver of theright to appeal was voluntarily, knowingly, and intelligently entered (see People v Lopez, 6 NY3d 248,256 [2006]; People v Wilson, 38AD3d 1348 [2007], lv denied 9 NY3d 927 [2007]). That valid waiver of the right toappeal encompasses defendant's contentions concerning County Court's refusal to sever theindictment (see People v Dean, 48AD3d 1244 [2008]), the court's denial of defendant's request for youthful offender status (see People v Williams, 37 AD3d1193 [2007]), and the severity of the sentence (see Lopez, 6 NY3d at 256; Peoplev Wilson, 289 AD2d 1088 [2001], lv denied 98 NY2d 656 [2002]).
Although defendant's further contention that the plea was not knowingly, voluntarily orintelligently entered survives the waiver of the right to appeal (see generally People vSeaberg, 74 NY2d 1, 10 [1989]), that contention is not preserved for our review inasmuch asdefendant failed to move to withdraw his plea or to vacate the judgment of conviction (seePeople v Bennefield, 306 AD2d 911 [2003], lv denied 8 NY3d 981 [2007],reconsideration denied 9 NY3d 863 [2007]). This case does not fall within the narrowexception to the preservation requirement (see People v Lopez, 71 NY2d 662, 666[1988]) and, in any event, defendant's plea was knowingly, voluntarily and intelligently entered(see e.g. People v Davenport, 273 AD2d 926 [2000]).
The contention of defendant that he was denied effective assistance of counsel "does notsurvive his guilty plea or his waiver of the right to appeal because there was no showing that theplea bargaining process was infected by [the] allegedly ineffective assistance or that defendantentered the plea because of his attorney['s] allegedly poor performance" (Dean, 48 AD3dat 1245 [internal quotation marks omitted]). Present—Scudder, P.J., Smith, Centra,Peradotto and Pine, JJ.