| People v Abdul |
| 2013 NY Slip Op 08093 [112 AD3d 644] |
| December 4, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Khairual Abdul, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hinrichs, J.), rendered June 22, 2011, convicting her of manslaughter in the first degree,upon her plea of guilty, and imposing sentence.
Ordered that judgment is affirmed.
The defendant knowingly, voluntarily, and intelligently waived her right to appeal aspart of her negotiated plea agreement (see People v Bradshaw, 18 NY3d 257 [2011]; People v Lopez, 6 NY3d248 [2006]; People v Kemp, 94 NY2d 831, 833 [1999]). The defendant'svalid waiver of her right to appeal precludes appellate review of her challenge to thefactual sufficiency of the plea allocution (see People v Crews, 92 AD3d 795 [2012]; People v Hardee, 84 AD3d835 [2011]).
Although the defendant's challenge to the voluntariness of the plea survives herwaiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]), thedefendant has failed to preserve this contention for appellate review, since she did notmove to withdraw her plea on this ground prior to the imposition of sentence (seeCPL 220.60 [3]; 470.05 [2]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Andrea, 98 AD3d627 [2012]). The "rare case" exception to the preservation rule does not apply herebecause the defendant's plea allocution did not cast significant doubt upon her guilt,negate an essential element of the crime, or call into question the voluntariness of theplea (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Gibson, 95 AD3d1033 [2012]).
The defendant contends that the County Court erred in denying her motion to strikecertain allegedly inaccurate information from the presentence investigation report. Shecontends that her waiver of the right to appeal did not encompass this issue since, at thetime she entered into the waiver, there was no specific reference to the presentenceinvestigation report. Contrary to this contention, "an unrestricted waiver of the right toappeal, knowingly, voluntarily and intelligently made, will bar consideration of a futureappellate claim despite the fact that, at the time the appeal waiver was exacted, thedefendant had not expressly waived every potential claim or available defense"(People v Muniz, 91 NY2d 570, 574 [1998]). Further, "except where the verypower of the court is implicated, appellate challenges to the procedures utilized indetermining and imposing sentence[*2]. . .may effectively be waived" by a valid waiver of the right to appeal (People vCallahan, 80 NY2d 273, 281 [1992] [citations omitted]). Here, the defendant'scontention implicates the procedures utilized in determining and imposing sentencerather than the power of the court or the legality of the sentence, and consequently, hercontention was effectively waived by her waiver of the right to appeal (see People v Andre L., 18AD3d 575, 576 [2005]; People v Hicks, 201 AD2d 831, 832 [1994];People v Moquette, 200 AD2d 854 [1994]; cf. People v Esquivel, 100 AD3d 652 [2012]).
Similarly, the defendant's contention that the prosecutor, during the sentencinghearing, improperly referred to evidence dehors the record is barred by her valid waiverof the right to appeal because it involves a challenge to the procedure at sentencing andnot the power of the court or the legality of the sentence (see People v Colucci, 94AD3d 1418, 1419 [2012]; People v Adams, 64 AD3d 1186, 1187 [2009]). Angiolillo,J.P., Hall, Austin and Miller, JJ., concur.