Opinion
2013-11-15
The PEOPLE of the State of New York, Respondent, v. Dana GARNER, Defendant–Appellant.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered October 19, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree. Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered October 19, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree.
Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
*869MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ). Contrary to defendant's contention, we conclude that his waiver of the right to appeal was knowingly, voluntarily, and intelligently entered ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). To the extent that defendant challenges the factual sufficiency of the plea allocution, that challenge is encompassed by the valid waiver of the right to appeal ( see People v. Topolski, 106 A.D.3d 1532, 1533, 964 N.Y.S.2d 450,lv. denied21 N.Y.3d 1020, 971 N.Y.S.2d 503, 994 N.E.2d 399). Although defendant's contention that the plea was not knowingly, voluntarily and intelligently entered survives the valid waiver of the right to appeal ( see People v. Theall, 109 A.D.3d 1107, 1107–1108, 971 N.Y.S.2d 753), we conclude based upon the record before us that his contention lacks merit ( see generally People v. Seeber, 4 N.Y.3d 780, 781–782, 793 N.Y.S.2d 826, 826 N.E.2d 797).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.