| People v Montanez |
| 2011 NY Slip Op 07971 [89 AD3d 1409] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EdwinMontanez, 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 January 28,2008. The judgment convicted defendant, upon his plea of guilty, of rape in the third 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 of rape inthe third degree (Penal Law § 130.25 [2]). Contrary to defendant's contention, we conclude thathe validly waived his right to appeal (seePeople v Lopez, 6 NY3d 248, 256 [2006]). Although the further contention of defendant thathis plea was not knowingly, intelligently or voluntarily entered survives his valid waiver of the right toappeal, "defendant failed to preserve that contention for our review because . . . he failedto move to withdraw the plea or to vacate the judgment of conviction" (People v Connolly, 70 AD3d 1510,1511 [2010], lv denied 14 NY3d 886 [2010]). In any event, defendant's contention lacksmerit. During the plea colloquy, defendant denied having any mental or physical impairments, deniedthat his plea was induced by threats or promises and admitted that he engaged in conduct thatconstituted rape in the third degree pursuant to Penal Law § 130.25 (2). Based on the record ofthe plea colloquy, we conclude that defendant understood the nature and consequences of the plea andthat it was knowingly, intelligently, and voluntarily entered (see People v White, 85 AD3d 1493 [2011]; People v Watkins, 77 AD3d 1403,1403-1404 [2010], lv denied 15 NY3d 956 [2010]; Connolly, 70 AD3d at 1511).Present—Smith, J.P., Carni, Lindley, Sconiers and Martoche, JJ.