| People v Graham |
| 2019 NY Slip Op 06925 [175 AD3d 1823] |
| September 27, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jamar A. Graham, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.), renderedJuly 30, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted rape inthe first degree and attempted kidnapping in the second 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 ofattempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]) andattempted kidnapping in the second degree (§§ 110.00, 135.20). Contrary todefendant's contention, the oral and written waivers of the right to appeal establish that defendantknowingly, intelligently, and voluntarily waived his right to appeal (see People v Moore,158 AD3d 1312, 1312 [4th Dept 2018], lv denied 31 NY3d 1015 [2018]; People vCochran, 156 AD3d 1474, 1474 [4th Dept 2017], lv denied 30 NY3d 1114 [2018]).While we agree with defendant that the written waiver includes improperly overbroad language,it is well established that "[a]ny nonwaivable issues purportedly encompassed by the waiver areexcluded from the scope of the waiver [and] the remainder of the waiver is valid andenforceable" (People v Weatherbee, 147 AD3d 1526, 1526 [4th Dept 2017], lv denied29 NY3d 1038 [2017] [internal quotation marks omitted]). Defendant's valid waiver of theright to appeal forecloses his contentions that County Court erred in compelling him to submit toa buccal swab for DNA analysis and in failing to adjourn the trial (see People v Smith,138 AD3d 1415, 1416 [4th Dept 2016]; see generally People v Watt, 82 AD3d 912, 912[2d Dept 2011], lv denied 16 NY3d 900 [2011]). Furthermore, those contentions are alsoforfeited by his plea of guilty (see People v King, 155 AD3d 1574, 1574 [4th Dept 2017],lv denied 30 NY3d 1106 [2018]; Smith, 138 AD3d at 1416; People vSimcox, 219 AD2d 869, 869 [4th Dept 1995]).
Although a valid waiver of the right to appeal does not preclude defendant's challenge to thevoluntariness of his plea, defendant failed to preserve that challenge for our review inasmuch ashe did not move to withdraw the plea or to vacate the judgment of conviction (see People vMobayed, 158 AD3d 1221, 1222 [4th Dept 2018], lv denied 31 NY3d 1015 [2018];People v Cruz, 81 AD3d 1300, 1301 [4th Dept 2011], lv denied 17 NY3d 793[2011]), and the "narrow, 'rare case' exception to the preservation doctrine" does not apply here(People v Toxey, 86 NY2d 725, 726 [1995], rearg denied 86 NY2d 839 [1995];see generally People v Hansen, 95 NY2d 227, 230-232 [2000]). Present—Whalen,P.J., Smith, DeJoseph, Curran and Winslow, JJ.