Opinion
March 31, 1999
Appeal from Judgment of Onondaga County Court, Burke, J. — Criminal Sale Controlled Substance, 3rd Degree.
Judgment unanimously affirmed. Memorandum: The waiver by defendant of the right to appeal encompasses his contentions that County Court erred in summarily denying his suppression motion (see, People v. Seaberg, 74 N.Y.2d 1, 7; People v. Williams, 36 N.Y.2d 829, cert denied 423 U.S. 873) and that the sentence is unduly harsh and severe (see, People v. Hidalgo, 91 N.Y.2d 733, 737; People v. Allen, 82 N.Y.2d 761, 763). The contention that the plea was not knowingly, voluntarily and intelligently made survives the waiver of the right to appeal (see, People v. Seaberg, supra, at 10; People v. Francabandera, 33 N.Y.2d 429, 434, n 2). By failing to move to withdraw the plea or to vacate the judgment of conviction, however, 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), and this case "does not qualify for the narrow, `rare case' exception to the preservation doctrine" (People v. Toxey, supra, at 726; see, People v. Jackson, 258 A.D.2d 920; People v. Allen, 258 A.D.2d 878).
Present — Green, J. P., Pine, Wisner, Scudder and Callahan, JJ.