Opinion
December 27, 2000.
Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Felony Driving While Intoxicated.
PRESENT: PIGOTT, JR., P. J., HAYES, WISNER, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant failed to move to withdraw his plea of guilty or to vacate the judgment convicting him of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192; § 1193 [1] [c]) and thus failed to preserve for our review his contention that the plea allocution was factually insufficient ( see, People v. Toxey, 86 N.Y.2d 725, 726, rearg denied 86 N.Y.2d 839). Contrary to defendant's contention, County Court properly accepted the plea without conducting further inquiry to ensure that defendant was waiving an alleged defense to the charge. Because defendant's recitation of the facts did not negate an essential element of the crime to which he pleaded guilty, the narrow exception to the preservation requirement does not apply ( see, People v. Lopez, 71 N.Y.2d 662, 666-667).
The valid waiver by defendant of the right to appeal encompasses his contention concerning the severity of the sentence ( see, People v. Hidalgo, 91 N.Y.2d 733, 737; see also, People v. Lococo, 92 N.Y.2d 825, 827). In any event, the sentence, to which defendant agreed as part of the plea bargain, is not unduly harsh or severe ( see, People v. Welsher, 270 A.D.2d 839, lv denied 95 N.Y.2d 806; People v. Cotton, 219 A.D.2d 836, 837, lv denied 87 N.Y.2d 900). Contrary to the further contention of defendant, the record establishes that he received effective assistance of counsel ( see, People v. Baldi, 54 N.Y.2d 137, 147).