| People v Peters |
| 2009 NY Slip Op 00726 [59 AD3d 928] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David Peters,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedOctober 23, 2006. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond 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 ofmurder in the second degree (Penal Law § 125.25 [3]). Contrary to the contention ofdefendant, the record of the plea colloquy establishes that his waiver of the right to appeal wasvoluntary, knowing and intelligent (seePeople v Branch, 49 AD3d 1206 [2008], lv denied 10 NY3d 932 [2008]). "Thefurther contention of defendant that his plea was not voluntarily, knowingly, and intelligentlyentered is actually a challenge to the factual sufficiency of the plea allocution . . . ,and that challenge is encompassed by the valid waiver of the right to appeal" (People v Wilson, 38 AD3d 1348[2007], lv denied 9 NY3d 927 [2007]; see Branch, 49 AD3d 1206 [2008]). Inany event, defendant failed to preserve that challenge for our review (see People vLopez, 71 NY2d 662, 665 [1988]), and this case does not fall within the narrow exception tothe preservation requirement (see id. at 666). Present—Scudder, P.J., Hurlbutt,Centra, Green and Gorski, JJ.