| People v Rodriguez |
| 2017 NY Slip Op 09020 [156 AD3d 1433] |
| December 22, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v AlexanderRodriguez, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedMarch 26, 2014. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree (three counts) and attempted assault in the firstdegree.
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 ofthree counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) and one count of attempted assault in the first degree(§§ 110.00, 120.10 [1]). Contrary to defendant's contention, he knowingly,intelligently, and voluntarily waived the right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]). County Court"expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waivehis right to appeal, and the court did not conflate that right with those automatically forfeited by aguilty plea" (People v McCrea, 140AD3d 1655, 1655 [4th Dept 2016], lv denied 28 NY3d 933 [2016] [internalquotation marks omitted]; see People vMills, 151 AD3d 1744, 1745 [4th Dept 2017], lv denied 29 NY3d 1131 [2017]).The valid waiver of the right to appeal encompasses defendant's challenge to the factualsufficiency of the plea allocution (see McCrea, 140 AD3d at 1655), and, in any event,that challenge is not preserved for our review because defendant did not move to withdraw theplea or to vacate the judgment of conviction (see id. at 1655-1656; see generallyPeople v Lopez, 71 NY2d 662, 665 [1988]).
To the extent that defendant challenges the voluntariness of his plea, that contention,although not precluded by the valid waiver of the right to appeal (see People v Neal, 148 AD3d1699, 1699-1700 [4th Dept 2017], lv denied 29 NY3d 1084 [2017]), is similarlyunpreserved for our review "inasmuch as defendant did not move to withdraw the plea or vacatethe judgment of conviction (see CPL 220.60 [3]; see also CPL 440.10), andnothing on the face of the record calls into question the voluntariness of the plea or castssignificant doubt upon defendant's guilt" (People v Karlsen, 147 AD3d 1466, 1468 [4th Dept 2017], lvdenied 29 NY3d 1082 [2017]).
Defendant further contends that the waiver of the right to appeal does not encompass hischallenge to the severity of his sentence (see generally People v Maracle, 19 NY3d 925, 927-928 [2012]).Although the court, during its oral colloquy, referenced defendant's "right . . . toappeal th[e] conviction" without referencing his right to challenge the severity of the sentence,we note that defendant executed and acknowledged in open court a written waiver of the right toappeal, in which he specifically agreed to waive "any issue relating to the conviction orsentence." Thus, we reject defendant's contention (see People v Morales, 148 AD3d 1638, 1639 [4th Dept 2017],lv denied 29 NY3d 1083 [2017]; cf. People v Cook, 147 AD3d 1387, 1387-1388 [4th Dept 2017],lv denied 29 NY3d 996 [2017]). Present—Smith, J.P., Carni, Lindley, Curran andTroutman, JJ.