| People v Devault |
| 2015 NY Slip Op 00658 [124 AD3d 1140] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKevin Devault, Appellant. |
Gail B. Rubenfeld, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered May 22, 2012, convicting defendant upon his plea of guilty of the crimes ofcourse of sexual conduct in the first degree, course of sexual conduct in the seconddegree, rape in the second degree and incest in the second degree.
In satisfaction of a 17-count indictment, defendant pleaded guilty to course of sexualconduct in the first degree, course of sexual conduct in the second degree, rape in thesecond degree and incest in the second degree. Defendant also executed a written waiverof his right to appeal. Following the denial of defendant's motion to vacate the plea,County Court sentenced him to an aggregate term of 25 years in prison, to be followed by20 years of postrelease supervision. Defendant now appeals.
We affirm. Initially, we reject defendant's argument that his waiver of the right toappeal is invalid. Any ambiguity in County Court's discussion of the waiver was resolvedby the written waiver and defendant's oral confirmation that he both had signed thewritten waiver in the presence of counsel and was waiving his right to appeal voluntarily(see People v Ramos, 7NY3d 737, 738 [2006]; People v Fling, 112 AD3d 1001, 1002 [2013], lvdenied 23 NY3d 1020 [2014]; see also People v Bradshaw, 18 NY3d 257, 266-267[2011]). Defendant's sole remaining challenge on this appeal is that his plea must bedeemed involuntary inasmuch as his recitation of the facts did not establish the elementsof the crimes to which he pleaded guilty. This argument amounts to a challenge to thefacial sufficiency of his plea and is barred by defendant's valid waiver of the right toappeal and his failure to preserve the issue by raising it in his motion to withdraw hisplea (see People v Long,117 AD3d 1326, 1326-1327 [2014], lv denied 24 NY3d 1003 [2014]; People v Mydosh, 117 AD3d1195, 1196 [2014], lv denied 24 NY3d 963 [2014]). [*2]Moreover, this is not the "rare case" that comes "within thenarrow exception to the preservation requirement" inasmuch as defendant's factualrecitation did not actually negate an essential element of the crime to which he pleaded(People v Worden, 22NY3d 982, 985 [2013] [internal quotation marks and citation omitted]; seePeople v Mydosh, 117 AD3d at 1196; People v Teele, 92 AD3d 972, 972 [2012]).
Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.