| People v Brown |
| 2009 NY Slip Op 06945 [66 AD3d 1385] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Eddie Brown,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.), renderedAugust 14, 2006. The judgment convicted defendant, upon his plea of guilty, of burglary 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 ofburglary in the second degree (Penal Law § 140.25 [2]). Contrary to the contentions ofdefendant, we conclude that his waiver of the right to appeal is valid (see People v Lopez, 6 NY3d 248,256 [2006]), and that it is not void as against public policy (see People v Carmody, 53 AD3d 1048 [2008], lv denied11 NY3d 830 [2008]). The further contention of defendant that his plea was not knowing,voluntary, or intelligent because he gave only "monosyllabic responses" to County Court'squestions in effect constitutes a challenge to the factual sufficiency of the plea allocution andthus is encompassed by the valid waiver of the right to appeal (see People v Bailey, 49 AD3d1258, 1259 [2008], lv denied 10 NY3d 932 [2008]; People v Cole, 42 AD3d 963[2007], lv denied 9 NY3d 990 [2007]). Although the further ground for the contention ofdefendant that his plea was not knowingly, voluntarily, and intelligently entered "survives hisvalid waiver of the right to appeal . . . , defendant did not move to withdraw theplea or to vacate the judgment of conviction and thus failed to preserve his contention for ourreview" (People v Dozier, 59 AD3d987, 987 [2009], lv denied 12 NY3d 815 [2009]; see People v Neal, 56 AD3d 1211 [2008], lv denied 12NY3d 761 [2009]). This case does not fall within the narrow exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 666 [1988]; Neal, 56 AD3d1211 [2008]). To the extent that the contention of defendant that he was denied effectiveassistance of counsel survives his guilty plea and waiver of the right to appeal (see People v Gimenez, 59 AD3d1088 [2009], lv denied 12 NY3d 816 [2009]; People v Bethune, 21 AD3d 1316 [2005], lv denied 6NY3d 752 [2005]), we reject that contention (see generally People v Ford, 86 NY2d 397,404 [1995]). Present—Smith, J.P., Centra, Fahey, Carni and Pine, JJ.