| People v Theall |
| 2013 NY Slip Op 06121 [109 AD3d 1107] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AdamTheall, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered November 18, 2010. The judgment convicted defendant, upon his plea ofguilty, of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofmurder in the second degree (Penal Law § 125.25 [1]), defendant contends, interalia, that his waiver of the right to appeal is invalid and that his plea was not knowingly,voluntarily or intelligently entered because the factual allocution negated his intent tokill, which is an essential element of the crime to which he pleaded guilty. It is wellsettled that a contention that a guilty plea is not knowing, voluntary and intelligentsurvives a valid waiver of the right to appeal (see People v Cloyd, 78 AD3d 1669, 1670 [2010], lvdenied 16 NY3d 857 [2011]; People v Trinidad, 23 AD3d 1060, 1061 [2005], lvdenied 6 NY3d 760 [2005]; see generally People v Seaberg, 74 NY2d 1, 10[1989]). Defendant, however, "failed to preserve that contention for our review bymoving to withdraw the plea or to vacate the judgment of conviction" (Trinidad,23 AD3d at 1061; see Cloyd, 78 AD3d at 1670). "Contrary to defendant'scontention, this case does not fall within the rare exception to the preservation rule"(Trinidad, 23 AD3d at 1061; see generally People v Lopez, 71 NY2d662, 666 [1988]). "Although the initial statements of defendant during the factualallocution may have negated the essential element of his intent to cause death, his furtherstatements removed any doubt regarding that intent" (Trinidad, 23 AD3d at1061; see Cloyd, 78 AD3d at 1670). In any event, County Court "conducted therequisite further inquiry to ensure that defendant understood the nature of the charge andthat the plea was intelligently entered" (People v Glasper, 46 AD3d 1401, 1402 [2007], lvdenied 10 NY3d 863 [2008]).
Even assuming, arguendo, that the waiver of the right to appeal is invalid (see People v Keiser, 100 AD3d927, 928 [2012], lv denied 20 NY3d 1062 [2013]; see also People v Bradshaw,76 AD3d 566, 569 [2010], affd 18 NY3d 257 [2011]), we wouldnevertheless reject defendant's contention that the sentence is unduly harsh or severe.Present—Scudder, P.J., Peradotto, Carni, Valentino and Whalen, JJ.