| People v Feliz |
| 2010 NY Slip Op 01137 [70 AD3d 1355] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jose A. Feliz,Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered May15, 2007. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, ofrobbery in the first degree (Penal Law § 160.15 [4]). The challenge by defendant to thefactual sufficiency of the plea allocution does not survive his waiver of the right to appeal (see People v Capoccetta, 67 AD3d1395 [2009]), the validity of which is not challenged by defendant. Additionally, by failingto move to withdraw his plea or to vacate the judgment of conviction, defendant failed topreserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Crandall, 66 AD3d 1455[2009]). The waiver of the right to appeal also encompasses the challenge by defendant to theseverity of the sentence (see People vLopez, 6 NY3d 248, 256 [2006]).
Defendant further contends that County Court did not conduct a sufficient inquiry during theplea colloquy to determine whether he was under the influence of any drugs or medications.Although that contention concerns the voluntariness of the plea and thus survives defendant'svalid waiver of the right to appeal, as noted defendant failed to move to withdraw the plea or tovacate the judgment of conviction and therefore failed to preserve his contention for our review(see People v Zulian, 68 AD3d1731 [2009]). In any event, defendant's contention lacks merit, inasmuch as the recordestablishes that the court in fact conducted a sufficient inquiry by asking defendant, "Do youhave any problems today, either physically or mentally, that in any way interfere with yourunderstanding of what we're doing here" (see Lopez, 71 NY2d at 666; People v Wilson, 59 AD3d 975[2009], lv denied 12 NY3d 861 [2009]). Defendant did not indicate in response theretothat he was unable to understand his rights or the terms of the plea agreement (see People v Davis, 37 AD3d1179 [2007], lv denied 8 NY3d 983 [2007]). Present—Centra, J.P., Peradotto,Lindley, Pine and Gorski, JJ.