| People v Connolly |
| 2010 NY Slip Op 01293 [70 AD3d 1510] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David C.Connolly, 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.), renderedOctober 19, 2007. The judgment convicted defendant, upon his plea of guilty, of manslaughter inthe first 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 ofmanslaughter in the first degree (Penal Law § 125.20 [1]). We reject the contention ofdefendant that the record of the plea proceeding fails to establish that he knowingly, intelligentlyand voluntarily waived the right to appeal. "Defendant's responses to County Court's questionsunequivocally established that defendant understood the proceedings and was voluntarilywaiving the right to appeal" (People vGilbert, 17 AD3d 1164, 1164 [2005], lv denied 5 NY3d 762 [2005]). His validwaiver of the right to appeal encompasses his challenge to the severity of the sentence (see People v Diaz, 62 AD3d 1252[2009], lv denied 12 NY3d 924 [2009]). It also encompasses his challenge to the factualsufficiency of the plea allocution with respect to the intent element of manslaughter in the firstdegree and his potential defense of lack of criminal responsibility (see People v Morales, 43 AD3d1384 [2007], lv denied 9 NY3d 1008 [2007]; People v Winchester, 38 AD3d 1336, 1337 [2007], lv denied9 NY3d 853 [2007]). In addition, by failing to move to withdraw the plea or to vacate thejudgment of conviction, defendant failed to preserve for our review his challenge to the factualsufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Moorer, 63 AD3d 1590[2009], lv denied 13 NY3d 837 [2009]). Although defendant initially denied that heintended to cause serious physical injury to the victim, the court fulfilled its obligation toconduct further inquiry with respect thereto, whereupon defendant admitted having that intent(see Lopez, 71 NY2d at 666; Moorer, 63 AD3d at 1590-1591).
The contention of defendant that the plea was not voluntarily entered survives his waiver ofthe right to appeal, but defendant failed to preserve that contention for our review because, asnoted, he failed to move to withdraw the plea or to vacate the judgment of conviction (seeDiaz, 62 AD3d 1252 [2009]). In any event, that contention is lacking in merit. Nothing inthe record of the plea proceeding suggests that defendant's diabetic condition interfered withdefendant's ability to understand the proceeding and, indeed, defendant assured the court that hewas in good condition, both mentally and [*2]physically (see People v Quinones, 63 AD3d759, 760 [2009], lv denied 13 NY3d 799 [2009]; People v Sonberg, 61 AD3d 1350 [2009], lv denied 13NY3d 800 [2009]). Contrary to the further contention of defendant, the information in thepresentence report and presentence memorandum concerning his medical condition "did notobligate the court to conduct a sua sponte inquiry" into a possible defense (People v Kelly, 50 AD3d 921,921 [2008], lv denied 10 NY3d 960 [2008]; see People v Sands, 45 AD3d 414 [2007], lv denied 10NY3d 816 [2008]; People v Bonilla, 299 AD2d 934, 935 [2002], lv denied 99NY2d 580 [2003]). Present—Smith, J.P., Fahey, Carni and Green, JJ.