| People v Gruber |
| 2013 NY Slip Op 05247 [108 AD3d 877] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KeithGruber, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered June 2, 2011, convicting defendant upon his plea of guilty of thecrime of driving while intoxicated.
Following his December 2009 arrest resulting from a one-car accident in whichdefendant crashed his car into a stone wall, he pleaded guilty to driving while intoxicatedand waived his right to appeal. The comprehensive appeal waiver, among other things,provided that defendant was waiving his right to "any other matters which I may have anappeal as of right or otherwise in any State or Federal Court." Thereafter, defendant wassentenced to, as relevant here, the agreed-upon prison term of 1
We affirm. To the extent that defendant challenges the voluntariness of his plea, suchchallenge is not preserved for this Court's review inasmuch as the record does notindicate that he has moved to withdraw his plea or vacate the judgment of conviction (see People v Revette, 102AD3d 1065, 1065 [2013]; People v Secore, 102 AD3d 1057, 1058 [2013]).Furthermore, as defendant made no statements that cast doubt upon his guilt or calledinto question the voluntariness of his plea, the narrow exception to the preservationrequirement is not implicated (see People v Secore, 102 AD3d 1059, 1060 [2013]; People v Williams, 102 AD3d1055, 1056 [2013]). Were we to consider defendant's argument that his plea wasrendered involuntary [*2]because the appeal waiverpurported to contain nonwaivable rights, we would find it to be unavailing. Where anappeal waiver encompasses nonwaivable issues, those issues are excluded from the scopeof the waiver and it fails to render the rest of the waiver invalid, much less implicate thevoluntariness of a defendant's plea (see People v Neal, 56 AD3d 1211, 1211 [2008], lvdenied 12 NY3d 761 [2009]; People v Norton, 9 AD3d 741, 742 [2004]; People v Wagoner, 6 AD3d985, 986 [2004]). Finally, defendant's contention that he received the ineffectiveassistance of counsel is similarly unpreserved due to his failure to move to withdraw hisplea or vacate the judgment of conviction (see People v Williams, 101 AD3d 1174, 1174 [2012]).
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.