| People v Lore |
| 2009 NY Slip Op 01030 [59 AD3d 1126] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Keith R. Lore,Appellant. |
—[*1] Edward M. Sharkey, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedFebruary 20, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted rapein the first 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 rape in the first degree (Penal Law §§ 110.00, 130.35 [4]), defendantcontends that he did not knowingly, intelligently and voluntarily waive his right to appeal. Wereject that contention (see People vBall, 20 AD3d 925 [2005], lv denied 5 NY3d 850 [2005]; People vChrispen, 306 AD2d 916 [2003], lv denied 100 NY2d 619 [2003]). The valid waiverby defendant of the right to appeal encompasses his challenge to the severity of the sentence(see People v Hidalgo, 91 NY2d 733, 737 [1998]). Defendant's challenge to the factualsufficiency of the plea allocution is also encompassed by the valid waiver of the right to appeal(see Ball, 20 AD3d 925 [2005]) and, in any event, defendant failed to preserve thatchallenge for our review (see People v Lopez, 71 NY2d 662, 665 [1988]). Finally, wenote that the certificate of conviction incorrectly reflects that defendant was convicted of rape inthe first degree under Penal Law § 130.35 (4), and it must therefore be amended to reflectthat he was convicted of attempted rape in the first degree under Penal Law §§110.00 and 130.35 (4) (see People vMartinez, 37 AD3d 1099 [2007], lv denied 8 NY3d 947 [2007]).Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.