| People v Oliver |
| 2019 NY Slip Op 09219 [178 AD3d 1463] |
| December 20, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Harold Oliver, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Mark S. Sinkiewicz, Acting District Attorney, Waterloo (Melissa K. Swartz of counsel), forrespondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered August28, 2017. The judgment convicted defendant upon a plea of guilty of forgery in the seconddegree.
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 offorgery in the second degree (Penal Law § 170.10 [1]). Contrary to defendant'scontention, we conclude that his waiver of the right to appeal is valid (see People v Yates, 173 AD3d1849, 1849 [4th Dept 2019]; Peoplev Smith, 164 AD3d 1621, 1621-1622 [4th Dept 2018], lv denied 32 NY3d 1177[2019]). Here, County Court engaged defendant in a sufficient colloquy to ascertain thatdefendant's waiver of the right to appeal was made knowingly, intelligently, and voluntarily (see People v Lopez, 6 NY3d 248,256 [2006]).
We further conclude that, "[a]lthough a valid waiver of the right to appeal would notpreclude defendant's challenge to the voluntariness of his plea, defendant failed to preserve thatchallenge for our review inasmuch as he did not move to withdraw the plea or to vacate thejudgment of conviction" (People vMobayed, 158 AD3d 1221, 1222 [4th Dept 2018], lv denied 31 NY3d 1015[2018]; see People v Cruz, 81 AD3d1300, 1301 [4th Dept 2011], lv denied 17 NY3d 793 [2011]). Contrary to defendant'scontention, this is not the "rare case in which the defendant's recitation of the facts underlying thecrime pleaded to clearly casts significant doubt upon [his] guilt or otherwise calls into questionthe voluntariness of the plea," and thus the exception to the preservation rule does not apply(Mobayed, 158 AD3d at 1222 [internal quotation marks omitted]; see generallyPeople v Lopez, 71 NY2d 662, 666 [1988]). Insofar as defendant also contests the factualsufficiency of the plea colloquy, that contention is encompassed by his valid waiver of the rightto appeal (see People v Oswold, 151AD3d 1756, 1756 [4th Dept 2017], lv denied 29 NY3d 1131 [2017]).
Finally, defendant's valid waiver of the right to appeal forecloses his challenge to the severityof the sentence (see Lopez, 6 NY3d at 255). Present—Whalen, P.J., Peradotto,Troutman and Bannister, JJ.