Opinion
No. KA 06-01057.
March 14, 2008.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered February 17, 2006. The judgment convicted defendant, upon his plea of guilty, of reckless endangerment in the first degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SHIRLEY K. DUFFY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of reckless endangerment in the first degree (Penal Law § 120.25) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (§ 265.02 [former (4)]). Contrary to the contention of defendant, the single plea colloquy for both pleas establishes that his waiver of the right to appeal was voluntary, knowing, and intelligent ( see People v Lococo, 92 NY2d 825, 827; People v Callahan, 80 NY2d 273, 280; People v Williams, 39 AD3d 1200, lv denied 9 NY3d 853). The further contention of defendant that the pleas were not knowingly, voluntarily, and intelligently entered because he did not recite the underlying facts of the crimes "is actually a challenge to the factual sufficiency of the plea allocution[s] . . ., [which] is encompassed by the valid waiver of the right to appeal" ( People v Wilson, 38 AD3d 1348, lv denied 9 NY3d 927; People v Williams, 35 AD3d 1273, 1274, lv denied 8 NY3d 928). Defendant also failed to preserve that contention for our review, and this case does not fall within the narrow exception to the preservation requirement ( see People v Lopez, 71 NY2d 662, 666; Wilson, 38 AD3d 1348; Williams, 35 AD3d at 1274). Finally, the challenge by defendant to the severity of the sentence in each appeal is encompassed by his valid waiver of the right to appeal ( see People v Lopez, 6 NY3d 248, 255; People v Hidalgo, 91 NY2d 733, 737).