| People v Harris |
| 2015 NY Slip Op 01343 [125 AD3d 1506] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAnthony C. Harris, Appellant. |
Muldoon, Getz & Reston, Rochester (Martin P. McCarthy, II, of counsel), fordefendant-appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedMay 6, 2013. The judgment convicted defendant, upon his plea of guilty, of attemptedcriminal possession of a forged instrument in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of attempted criminal possession of a forged instrument in the second degree(Penal Law §§ 110.00, 170.25). We agree with defendant that hiswaiver of the right to appeal is invalid. "During the plea colloquy, County Courtconflated the appeal waiver with the rights automatically waived by the guilty plea" (People v Sanborn, 107 AD3d1457, 1458 [2013] [internal quotation marks omitted]; see People v Tate, 83 AD3d1467, 1467 [2011]).
Defendant failed to move to withdraw his guilty plea under CPL 220.60 (3) or tovacate the judgment of conviction under CPL 440.10 and, therefore, his challenge to thefactual sufficiency of the plea allocution is not preserved for our review (see People vLopez, 71 NY2d 662, 665 [1988]; People v McKeon, 78 AD3d 1617, 1618 [2010], lvdenied 16 NY3d 799 [2011]). Further, this is not one of those "rare case[s]" inwhich, during the plea allocution, "defendant's recitation of the facts underlying thecrime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwisecalls into question the voluntariness of the plea" (Lopez, 71 NY2d at 666). In anyevent, we note that "no factual colloquy was required inasmuch as defendant pleadedguilty to a crime lesser than that charged in the indictment" (People v Richards, 93 AD3d1240, 1240 [2012], lv denied 20 NY3d 1014 [2013]; see People v Neil, 112 AD3d1335, 1336 [2013], lv denied 23 NY3d 1040 [2014]).
Finally, the sentence is not unduly harsh or severe. Present—Peradotto, J.P.,Carni, Sconiers and Whalen, JJ.