Opinion
KA 02-01488
June 13, 2003.
Appeal from a judgment of Cattaraugus County Court (Himelein, J.), entered April 15, 2002, convicting defendant upon his plea of guilty of, inter alia, sodomy in the third degree.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (MICKELLE A. OLAWOYE OF COUNSEL), FOR DEFENDANT-APPELLANT.
EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of rape in the third degree (Penal Law 130.25) and sodomy in the third degree (130.40 [2]). The waiver by defendant of the right to appeal was knowing and voluntary and encompasses his challenges to the factual sufficiency of the plea ( see People v. Harris, 269 A.D.2d 839; People v. DeJesus, 248 A.D.2d 1023, lv denied 92 N.Y.2d 878) and the severity of the sentence ( see People v. Lococo, 92 N.Y.2d 825, 827; Harris, 269 A.D.2d at 839). While defendant's contention that the plea was not knowing and voluntary survives the waiver of the right to appeal, by failing to move to withdraw the plea or to vacate the judgment, defendant failed to preserve that contention for our review ( see Harris, 269 A.D.2d at 839-840). "This is not one of those rare cases in which the statements of defendant engender significant doubt with respect to his guilt or otherwise call into question the voluntariness of the plea" ( id. at 840).