| People v Wackwitz |
| 2012 NY Slip Op 01959 [93 AD3d 1220] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey S.Wackwitz, Sr., Appellant. (Appeal No. 1.) |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (John C. Luzier of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedNovember 9, 2009. The judgment convicted defendant, upon his plea of guilty, of grand larcenyin the third degree and scheme to defraud in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of grand larceny in the third degree (Penal Law former § 155.35) and schemeto defraud in the first degree (§ 190.65 [1] [b]). In appeal No. 2, he appeals from ajudgment convicting him, upon the same plea of guilty, of burglary in the third degree (§140.20). Contrary to the contention of defendant in both appeals, his waiver of the right to appealwas valid. County Court "expressly ascertained from defendant that, as a condition of the plea, hewas agreeing to waive his right to appeal, and the court did not treat that right as one of the rightsautomatically forfeited by a guilty plea" (People v Bilus, 44 AD3d 325, 326 [2007], lv denied 9NY3d 1031 [2008]; see People vLopez, 6 NY3d 248, 256-257 [2006]; cf. People v Moyett, 7 NY3d 892 [2006]). The valid waiverencompasses defendant's challenge to the factual sufficiency of the plea allocution (see People v Jackson, 50 AD3d1615, 1615-1616 [2008], lv denied 10 NY3d 960 [2008]). In any event, defendantfailed to move to withdraw the plea or to vacate the judgments of conviction on that ground andthus failed to preserve that challenge for our review (see People v Lopez, 71 NY2d 662,665 [1988]). This case does not fall within the rare exception to the preservation requirement setforth in Lopez (71 NY2d at 666). Even assuming, arguendo, that defendant's statementsduring the colloquy called into question the voluntariness of the plea and thus that thepreservation exception applies, we conclude upon our review of the record that the court madesufficient further inquiry to ensure that defendant's plea was knowing and voluntary (seeid.). Present—Scudder, P.J., Smith, Carni and Sconiers, JJ.