Opinion
No. KA 06-03779.
February 6, 2009.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered October 23, 2006. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree.
Present: Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25). Contrary to the contention of defendant, the record of the plea colloquy establishes that his waiver of the right to appeal was voluntary, knowing and intelligent ( see People v Branch, 49 AD3d 1206, lv denied 10 NY3d 932). "The further contention of defendant that his plea was not voluntarily, knowingly, and intelligently entered is actually a challenge to the factual sufficiency of the plea allocution . . ., and that challenge is encompassed by the valid waiver of the right to appeal" ( People v Wilson, 38 AD3d 1348, lv denied 9 NY3d 927; see Branch, 49 AD3d 1206). In any event, defendant failed to preserve that challenge for our review ( see People v Lopez, 71 NY2d 662, 665), and this case does not fall within the narrow exception to the preservation requirement ( see id. at 666).