| People v Oswold |
| 2017 NY Slip Op 04712 [151 AD3d 1756] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Thomas R.Oswold, Appellant. |
Andrea J. Schoeneman, Conflict Defender, Canandaigua (Robert Tucker of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedFebruary 11, 2015. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the third degree and perjury in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [1]) andperjury in the first degree (§ 210.15). Contrary to defendant's contention, weconclude that he knowingly, voluntarily and intelligently waived his right to appeal (see generally People v Sanders, 25NY3d 337, 340-341 [2015]), and thus defendant's challenge to the factual sufficiency of theplea allocution is encompassed by his waiver of the right to appeal (see People v McCrea, 140 AD3d1655, 1655 [2016], lv denied 28 NY3d 933 [2016]). Moreover, defendant failed topreserve that challenge for our review inasmuch as he failed to move to withdraw the plea or tovacate the judgment of conviction on that ground (see People v Lopez, 71 NY2d 662, 665[1988]). In any event, "the plea allocution as a whole establishes that 'defendant understood thecharges and made an intelligent decision to enter a plea' " (People v Keitz, 99 AD3d 1254,1255 [2012], lv denied 20 NY3d 1012 [2013], denied reconsideration 21 NY3d913 [2013], quoting People vGoldstein, 12 NY3d 295, 301 [2009]). Defendant's challenge to the legal sufficiency ofthe evidence before the grand jury with respect to the perjury count does not survive the guiltyplea (see People v Gillett, 105AD3d 1444, 1445 [2013]; People v Lawrence, 273 AD2d 805, 805 [2000], lvdenied 95 NY2d 867 [2000]), nor does his challenge to the sufficiency of the factualallegations in the indictment with respect to that count (see People v Guerrero, 28 NY3d 110, 116 [2016];Lawrence, 273 AD2d at 805; People v Holt, 173 AD2d 644, 645 [1991]).Present—Whalen, P.J., Smith, Carni, Curran and Scudder, JJ.