| People v Allport |
| 2009 NY Slip Op 00855 [59 AD3d 1001] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brian L.Allport, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered May 14,2007. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the firstdegree (two counts).
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 of twocounts of sexual abuse in the first degree (Penal Law § 130.65 [3]), defendant contendsthat his plea was coerced by defense counsel and thus was involuntary. Although that contentionsurvives the waiver by defendant of the right to appeal, he failed to move to withdraw the plea orto vacate the judgment of conviction and thus failed to preserve that contention for our review(see People v Aguayo, 37 AD3d1081 [2007], lv denied 8 NY3d 981 [2007]; People v DeJesus, 248 AD2d1023 [1998], lv denied 92 NY2d 878 [1998]). The further contention of defendant that hewas denied effective assistance of counsel survives his plea and waiver of the right to appealinasmuch as he contends that the plea was coerced by defense counsel (see People v Peterson, 56 AD3d1230 [2008]), but that contention is belied by defendant's statements during the pleacolloquy (see People v Farley, 34AD3d 1229 [2006], lv denied 8 NY3d 880 [2007]; see also People v Nichols, 21 AD3d1273, 1274 [2005], lv denied 6 NY3d 757 [2005]). Contrary to the contention ofdefendant, his waiver of the right to appeal encompasses his challenge to the severity of thesentence (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91NY2d 733, 737 [1998]). Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto,JJ.