| People v Ware |
| 2014 NY Slip Op 01910 [115 AD3d 1235] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarkA. Ware, 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 March 2, 2009. The judgment convicted defendant, upon his plea of guilty, ofmanslaughter in the first degree and assault 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 ofmanslaughter in the first degree (Penal Law § 125.20 [1]) and assault in the seconddegree (§ 120.05 [2]), defendant contends that his waiver of the right to appeal isinvalid; his plea was not knowingly and voluntarily entered; and his sentence is undulyharsh and severe. Although we conclude that defendant's waiver of the right to appealwas valid (see People vLopez, 6 NY3d 248, 256 [2006]; People v Flagg, 107 AD3d 1613, 1614 [2013]), hiscontention concerning the knowing and voluntary nature of the plea survives the validwaiver (see People vRobinson, 112 AD3d 1349, 1349 [2013]). Nevertheless, the record does notestablish that defendant timely moved to withdraw his plea or to vacate the judgment ofconviction, and thus his contention is not preserved for our review (see id.). Inany event, his contention is without merit (see People v Cox, 111 AD3d 1310, 1310 [2013]).Defendant's valid waiver of the right to appeal "forecloses any challenge by defendant tothe severity of the sentence" (People v Pulley, 107 AD3d 1560, 1561 [2013], lvdenied 21 NY3d 1076 [2013]). Present—Smith, J.P., Fahey, Lindley, Sconiersand Valentino, JJ.