Opinion
February 16, 2000
Appeal from Judgment of Erie County Court, DiTullio, J. — Robbery, 2nd Degree.
PRESENT: PINE, J. P., HAYES, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
The record establishes that defendant knowingly, intelligently and voluntarily waived his right to appeal, and that waiver encompasses his contention regarding the severity of the sentence ( see, People v. Lococo, 92 N.Y.2d 825, 827; People v. Hidalgo, 91 N.Y.2d 733, 737). That waiver also encompasses defendant's challenge to the factual sufficiency of the plea allocution ( see, People v. Zimmerman, 219 A.D.2d 848, lv denied 88 N.Y.2d 856; People v. Cooper, 191 A.D.2d 1046). The contention that defendant did not voluntarily, knowingly and intelligently enter his guilty plea survives his waiver of the right to appeal ( see, People v. Seaberg, 74 N.Y.2d 1, 10; People v. Francabandera, 33 N.Y.2d 429, 434, n 2), but by failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve that contention for our review ( see, People v. Toxey, 86 N.Y.2d 725, 726, rearg denied 86 N.Y.2d 839; People v. Lopez, 71 N.Y.2d 662, 665). 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 ( see, People v. Toxey, supra, at 726; People v. Lopez, supra, at 666). "The record shows that defendant was advised of his rights and that his Alford plea ( see, North Carolina v. Alford, 400 U.S. 25) was knowingly, intelligently and voluntarily entered with a full understanding of its consequences" ( People v. Alfieri, 201 A.D.2d 935, lv denied 83 N.Y.2d 908; see, People v. Peralta, 231 A.D.2d 958, lv denied 90 N.Y.2d 909). "The proof that the People intended to offer at trial, placed on the record by the prosecutor, contained strong evidence of defendant's guilt" ( People v. Peralta, supra; see, People v. Sanford, 231 A.D.2d 900, lv denied 89 N.Y.2d 929).