Opinion
No. KA 06-01096.
February 8, 2008.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered June 14, 2005. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Martoche, Smith, 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 assault in the second degree (Penal Law § 120.05). The challenge by defendant to the factual sufficiency of the plea allocution does not survive his valid waiver of the right to appeal ( see People v Collins, 45 AD3d 1472) and, in any event, defendant failed to preserve that challenge for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction ( see People v Lopez, 71 NY2d 662, 665; People v Hamilton, 45 AD3d 1396). Finally, the sentence is not unduly harsh or severe.