| People v Rios |
| 2012 NY Slip Op 02240 [93 AD3d 1349] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James A.Rios, 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 April17, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary in the thirddegree and criminal possession of a weapon in the second 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 ofburglary in the third degree (Penal Law § 140.20) and criminal possession of a weapon inthe second degree (§ 265.03 [2]). We reject defendant's contention that he did notknowingly, voluntarily and intelligently waive his right to appeal. Taking into account "the natureand terms of the [plea] agreement and the age, experience and background of [defendant]"(People v Seaberg, 74 NY2d 1, 11 [1989]), we conclude that the record of the pleacolloquy "establish[es] that the defendant understood that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; cf. People v Moyett, 7NY3d 892, 893 [2006]). Defendant's further contention that his plea was not knowingly andvoluntarily entered is actually a challenge to the factual sufficiency of the plea allocution. Thatchallenge "is encompassed by the valid waiver of the right to appeal and is unpreserved for ourreview inasmuch as [defendant] did not move to withdraw the plea or to vacate the judgment ofconviction on that ground" (People vBryant, 87 AD3d 1270, 1271 [2011], lv denied 18 NY3d 881 [2012]). Inaddition, "the waiver by defendant of the right to appeal encompasses his contention that thesentence is unduly harsh and severe" (People v Ruffins, 78 AD3d 1627, 1628 [2010]).Present—Smith, J.P., Carni, Lindley and Sconiers, JJ.