Opinion
(927) KA 00-01613
July 3, 2001.
Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Attempted Course of Sexual Conduct Against Child, 2nd Degree.
Judgment unanimously affirmed.
Before: PIGOTT, JR., P.J., GREEN, PINE, SCUDDER AND BURNS, JJ.
Memorandum:
Defendant failed to move to withdraw his plea of guilty or to vacate the judgment convicting him of attempted course of sexual conduct against a child in the second degree (Penal Law §§ 110.00, former 130.80 [a]) and thus failed to preserve for our review his contention that the plea allocution was factually insufficient ( see, People v. Crooks, 278 A.D.2d 931, lv denied 96 N.Y.2d 782 [decided Mar. 12, 2001]). The statements of defendant in this case do not cast significant doubt on the voluntariness of the plea, and therefore his challenge to the plea allocution does not qualify for the narrow, rare case exception to the preservation doctrine ( 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, 666). 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; People v. Crooks, supra, at 931-932). In any event, the sentence, to which defendant agreed as part of the plea bargain, is neither unduly harsh nor severe ( see, People v. Crooks, supra, at 932; People v. Welsher, 270 A.D.2d 839, lv denied 95 N.Y.2d 806).