| People v Hinkson |
| 2009 NY Slip Op 00736 [59 AD3d 934] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Wayne R.Hinkson, Appellant. (Appeal No. 1.) |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered February13, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted burglary inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]),defendant contends that his waiver of the right to appeal was invalid. We reject that contention.The record "establish[es] that the defendant understood that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; cf. People v Cain, 29 AD3d1157 [2006]; People v Popson,28 AD3d 870 [2006]), and that he knowingly, intelligently and voluntarily waived the rightto appeal (see People v Seaberg, 74 NY2d 1, 11 [1989]). Defendant's challenge to thefactual sufficiency of the plea allocution is encompassed by that valid waiver of the right toappeal (see People v Spivey, 9AD3d 886 [2004], lv denied 3 NY3d 712 [2004]) and, in any event, defendant failedto preserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665 [1988];People v Owes, 34 AD3d1320, 1321 [2006]). Present—Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.