| People v Simcoe |
| 2010 NY Slip Op 05188 [74 AD3d 1858] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v HaroldSimcoe, Appellant. |
—[*1]
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May7, 2008. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated,as a class D felony.
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 offelony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c][former (ii)]). We reject the contention of defendant that his waiver of the right to appeal is voidas against public policy (see People v Muniz, 91 NY2d 570, 573-575 [1998]). Contraryto the further contention of defendant, the record establishes that his waiver of the right to appealwas knowingly, intelligently and voluntarily entered (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Grimes, 53 AD3d 1055[2008], lv denied 11 NY3d 789 [2008]).
The contention of defendant that his plea was not knowing, intelligent and voluntary"because he did not recite the underlying facts of the crime but simply replied to County Court'squestions with monosyllabic responses is actually a challenge to the factual sufficiency of theplea allocution," which is encompassed by the valid waiver of the right to appeal (People v Bailey, 49 AD3d 1258,1259 [2008], lv denied 10 NY3d 932 [2008]; see People v Brown, 66 AD3d 1385 [2009]; People v Peters, 59 AD3d 928[2009], lv denied 12 NY3d 820 [2009]). In any event, that challenge lacks meritinasmuch as "there is no requirement that defendant recite the underlying facts of the crime towhich he is pleading guilty" (Bailey, 49 AD3d at 1259; see People v VanDeViver, 56 AD3d1118 [2008], lv denied 11 NY3d 931 [2009], denied reconsideration 12NY3d 788 [2009]). Present—Martoche, J.P., Fahey, Carni, Sconiers and Green, JJ.