| People v Jimenez |
| 2019 NY Slip Op 08063 [177 AD3d 1326] |
| November 8, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan Jimenez, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Erin P. Kulesus of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered May 30, 2017. The judgment convicted defendant upon his plea of guilty ofattempted arson in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted arson in the second degree (Penal Law §§ 110.00, 150.15),defendant contends that his waiver of the right to appeal is invalid. We reject thatcontention. The colloquy established that defendant knowingly, intelligently, andvoluntarily waived his right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]; People v Ripley, 94 AD3d1554, 1554 [4th Dept 2012], lv denied 19 NY3d 976 [2012]; People v Richards, 93 AD3d1240, 1240 [4th Dept 2012], lv denied 20 NY3d 1014 [2013]), and therecord belies his contention that, although aided by an interpreter, he was unable tounderstand the proceedings (seegenerally People v Brown, 151 AD3d 1951, 1952 [4th Dept 2017], lv denied29 NY3d 1124 [2017]). Defendant's valid waiver of the right to appeal forecloses hischallenge to the severity of his sentence (see People v Carr, 147 AD3d 1506, 1506 [4th Dept 2017],lv denied 29 NY3d 1030 [2017]; People v Bryan, 78 AD3d 1692, 1693 [4th Dept 2010],lv denied 16 NY3d 829 [2011]).
Defendant failed to preserve for our review his further contention that his plea wasnot voluntarily, knowingly, or intelligently entered inasmuch as he did not move towithdraw his plea or to vacate the judgment of conviction pursuant to CPL article 440(see People v Sheppard, 149AD3d 1569, 1569 [4th Dept 2017], lv denied 29 NY3d 1133 [2017];People v Nieves, 299 AD2d 888, 888-889 [4th Dept 2002], lv denied 99NY2d 631 [2003]). Contrary to defendant's contention, this case does not fall within therare exception to the preservation doctrine inasmuch as defendant made no statementduring the plea colloquy or at sentencing that "cast[ ] significant doubt upon [his] guilt orotherwise call[ed] into question the voluntariness of the plea" (People v Lopez,71 NY2d 662, 666 [1988]; seePeople v Stutzman, 158 AD3d 1294, 1295 [4th Dept 2018], lv denied 31NY3d 1122 [2018]). To the extent that defendant concedes that he did not make such astatement and instead contends that County Court erred in failing sua sponte to inquireinto a possible defense to the crime, that contention is "actually a challenge to the factualsufficiency of the plea allocution, and it is well settled that defendant's valid waiver ofthe right to appeal encompasses that challenge" (People v Arney, 120 AD3d 949, 949-950 [4th Dept 2014];see People v Zimmerman,100 AD3d 1360, 1361 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]).Present—Peradotto, J.P., Carni, Lindley, NeMoyer and Troutman, JJ.