| People v Adams |
| 2008 NY Slip Op 10268 [57 AD3d 1385] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ronald Adams,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.), renderedNovember 29, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted forgeryin the second degree.
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, ofattempted forgery in the second degree (Penal Law §§ 110.00, 170.10 [2]). We agreewith defendant that he did not validly waive his right to appeal. The record establishes that SupremeCourt (John J. Brunetti, A.J.) failed to " 'engage[ ] the defendant in an adequate colloquy to ensure thatthe waiver of the right to appeal was a knowing and voluntary choice' " (People v Brown, 296AD2d 860 [2002], lv denied 98 NY2d 767 [2002]; see People v Matthews, 24 AD3d 1306 [2005], lv denied 6NY3d 850 [2006]). In any event, although the contention of defendant that his plea was not knowingly,voluntarily, and intelligently entered would survive even a valid waiver of the right to appeal (see People v Elardo, 52 AD3d 1272[2008], lv denied 11 NY3d 787, 788 [2008]; People v DeJesus, 248 AD2d 1023[1998], lv denied 92 NY2d 878 [1998]), we conclude that the contention of defendant isactually a challenge to the factual sufficiency of the plea allocution because he contends therein that hefailed to recite the underlying facts of the crime (see People v Williams, 35 AD3d 1273 [2006], lv denied 8NY3d 928 [2007]). Defendant failed to preserve that contention for our review (see id.), andthis case does not fall within the narrow exception to the preservation requirement (see People vLopez, 71 NY2d 662, 666 [1988]). Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Centra, Lunn, Fahey and Green, JJ.