Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. Mark A. WARE, Defendant–Appellant.
Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ) and assault in the second degree (§ 120.05[2] ), defendant contends that his waiver of the right to appeal is invalid; his plea was not knowingly and voluntarily entered; and his sentence is unduly harsh and severe. Although we conclude that defendant's waiver of the right to appeal was valid ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Flagg, 107 A.D.3d 1613, 1614, 967 N.Y.S.2d 577), his contention concerning the knowing and voluntary nature of the plea survives the valid waiver ( see People v. Robinson, 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529). Nevertheless, the record does not establish that defendant timely moved to withdraw his plea or to vacate the judgment of conviction, and thus his contention is not preserved for our review ( see id.). In any event, his contention is without merit ( see People v. Cox, 111 A.D.3d 1310, 1310, 974 N.Y.S.2d 829). Defendant's valid waiver of the right to appeal “forecloses any challenge by defendant to the severity of the sentence” ( People v. Pulley, 107 A.D.3d 1560, 1561, 966 N.Y.S.2d 709,lv. denied21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.