| People v Garner |
| 2013 NY Slip Op 07625 [111 AD3d 1421] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DanaGarner, 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 October 19, 2009. The judgment convicted defendant, upon his plea of guilty,of attempted burglary 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 ofguilty, of attempted burglary in the second degree (Penal Law §§ 110.00,140.25 [2]). Contrary to defendant's contention, we conclude that his waiver of the rightto appeal was knowingly, voluntarily, and intelligently entered (see People v Lopez, 6 NY3d248, 256 [2006]). To the extent that defendant challenges the factual sufficiency ofthe plea allocution, that challenge is encompassed by the valid waiver of the right toappeal (see People vTopolski, 106 AD3d 1532, 1533 [2013], lv denied 21 NY3d 1020[2013]). Although defendant's contention that the plea was not knowingly, voluntarilyand intelligently entered survives the valid waiver of the right to appeal (see People v Theall, 109 AD3d1107, 1107-1108 [2013]), we conclude based upon the record before us that hiscontention lacks merit (seegenerally People v Seeber, 4 NY3d 780, 781-782 [2005]).Present—Smith, J.P., Centra, Fahey, Carni and Whalen, JJ.