Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Devon S. GARRY, also known as “D,” Defendant–Appellant.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered May 5, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree.Donald R. Gerace, Utica, 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 (Michael L. Dwyer, J.), rendered May 5, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree.Donald R. Gerace, Utica, for defendant-appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his guilty plea, of attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16[1] ). We reject defendant's contention that his waiver of his right to appeal was invalid. The record of the plea colloquy and the written waiver of the right to appeal establish that defendant was “adequately apprised ... that ‘the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( People v. Kulyeshie, 71 A.D.3d 1478, 1478, 895 N.Y.S.2d 909, lv. denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Although defendant's contention that his plea was not voluntarily, knowingly, and intelligently entered survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review by moving to withdraw the plea or to vacate the judgment of conviction ( see People v. Davis, 45 A.D.3d 1357, 844 N.Y.S.2d 739, lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879; People v. Jones, 42 A.D.3d 968, 840 N.Y.S.2d 860). Further, contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5, because nothing in the plea allocution calls into question the voluntariness of the plea or casts “significant doubt” upon his guilt ( People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623; see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; Jones, 42 A.D.3d 968, 840 N.Y.S.2d 860).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.