| People v McCrea |
| 2016 NY Slip Op 04553 [140 AD3d 1655] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChristopher McCrea, Appellant. |
Muldoon, Getz & Reston, Rochester (Gary Muldoon of counsel), fordefendant-appellant.
Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Michael F. Griffith, J.),rendered April 3, 2013. The judgment convicted defendant, upon his plea of guilty, ofperjury in the first 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 perjury in the first degree (Penal Law § 210.15). We rejectdefendant's contention that his waiver of the right to appeal was not knowingly,voluntarily, and intelligently entered (see People v Lopez, 6 NY3d 248, 256 [2006]). "CountyCourt expressly ascertained from defendant that, as a condition of the plea, he wasagreeing to waive his right to appeal, and the court did not conflate that right with thoseautomatically forfeited by a guilty plea" (People v Thompson, 83 AD3d 1535, 1535 [2011] [internalquotation marks omitted]; seePeople v Villar, 115 AD3d 1361, 1361 [2014], lv denied 23 NY3d 1044[2014]). Defendant's challenge to the factual sufficiency of the plea allocution isencompassed by his valid waiver of the right to appeal (see People v Oberdorf, 136AD3d 1291, 1292 [2016]; People v Rosado, 70 AD3d 1315, 1316 [2010], lvdenied 14 NY3d 892 [2010]). In any event, defendant failed to preserve thatcontention for our review because he did not move to withdraw the plea or to vacate thejudgment of conviction on that ground (see Oberdorf, 136 AD3d at 1292; People v Wackwitz, 93 AD3d1220, 1221 [2012], lv denied 19 NY3d 868 [2012]). Present—Smith,J.P., Centra, DeJoseph, Curran and Scudder, JJ.