February 17, 2010. Appeal from the 3d Dept: 67 AD3d 1125 (Schenectady). (Read, J.)
Similarly, inasmuch as defendant's claim of ineffective assistance of counsel pertains to counsel's representation at a pre-plea suppression hearing and does not impact on the voluntariness of his subsequent plea, it does not survive the waiver of appeal ( see People v Gentry, 73 AD3d 1383, 1384) and, is, in any event, unpreserved for our review ( see People v Jenks, 69 AD3d 1120, 1121, lv denied 14 NY3d 841). While defendant's challenge to the voluntariness of his plea as it relates to Supreme Court's failure to render a determination on his motion to suppress survives his appeal waiver, the issue is unpreserved as defendant neither moved to withdraw his plea nor to vacate the judgment of conviction ( see People v Phelan, 77 AD3d 987, 987; People v Campbell, 67 AD3d 1125, 1125, lv denied 14 NY3d 770). Moreover, by pleading guilty before obtaining a final order determining his motion to suppress, defendant forfeited his right to appellate review of the undetermined suppression issues ( see CPL 710.70; People v Fernandez, 67 NY2d 686, 688 [1986]; People v Adams, 31 AD3d 1063, 1064-1065, lv denied 7 NY3d 845; People v Williams, 6 AD3d 746, 747, lv denied 3 NY3d 650; People v Vansickle, 301 AD2d 963, 964). Additionally, as part of his plea, defendant expressly withdrew all pending motions and specifically waived his right to a suppression hearing.
Preliminarily, we reject any assertion that defendant's waiver of the right to appeal was invalid. County Court fully and separately explained the nature and ramifications of the waiver, and defendant expressed his understanding of the right he was waiving and indicated that he had sufficient time to confer with counsel. Under such circumstances, we conclude that defendant's waiver was valid ( see People v Campbell, 67 AD3d 1125, 1125, lv denied 14 NY3d 770; People v Gomez, 50 AD3d 1391, 1391, lv denied 11 NY3d 736). Although defendant's challenge to the voluntariness of his plea survives the foregoing waiver, defendant's failure to move to withdraw his plea or vacate the judgment of conviction renders this issue unpreserved for our review ( see People v Empey, 73 AD3d 1387, 1388; People v Singh, 73 AD3d 1384, 1384-1385).
Even if preserved, defendant's allegation involves matters outside the record (see People v Elliott, 62 AD3d 1098, 1099, lv denied 12 NY3d 924). Moreover, during his plea colloquy, defendant specifically stated that he had not been coerced and was satisfied with counsel's representation. Finally, in light of defendant's valid waiver of the right to appeal, his argument that his sentence was harsh and excessive is precluded (see People v Campbell, 67 AD3d 1125, 1126, lv denied 14 NY3d 770). Ordered that the judgment is affirmed.
In any event, as defendant manifestly understood the charge and made a knowing, voluntary and intelligent decision to plead guilty, he cannot now be heard to question whether the facts admitted constitute the crime to which he pleaded guilty ( see People v Goldstein, 12 NY3d 295, 301; People v Francis, 38 NY2d 150, 154-155; People v Dewer, 243 AD2d 984, 985, lv denied 91 NY2d 925). Defendant's remaining claim of ineffective assistance, to the extent it implicates the voluntariness of his plea and thereby survives his waiver of appeal, is unpreserved due to his failure to move to withdraw the guilty plea or vacate the judgment of conviction ( see People v Garland, 69 AD3d 1122, 1123, lv denied 14 NY3d 887; People v Campbell, 67 AD3d 1125, 1125, lv denied 14 NY3d 770). Regardless, the record reveals that defendant received meaningful representation ( see People v Scitz, 67 AD3d 1251, 1252). Ordered that the judgment is affirmed.
Defendant responded "no." Under such circumstances, the appeal waiver is valid ( see People v Lopez, 6 NY3d 248, 256; People v Campbell, 67 AD3d 1125, 1125, lv denied 14 NY3d 770; People v Gilmour, 61 AD3d 1122, 1123, lv denied 12 NY3d 925; People v Getter, 52 AD3d 1117, 1118). Defendant's challenges to the voluntariness of his plea and the factual sufficiency of the plea allocution — premised on County Court's purported failure to ensure he knowingly waived a possible insanity defense — are not preserved given his failure to move to withdraw the plea or vacate the judgment of conviction ( see People v Greene, 274 AD2d 842, 843, lv denied 95 NY2d 963; People v Hicks, 201 AD2d 831, 832, lv denied 83 NY2d 911). Defendant's argument regarding the sufficiency of his plea allocution is likewise precluded by his valid waiver of appeal, as specifically set forth in the written waiver ( see People v Stokely, 49 AD3d 966, 968; People v Ramirez, 45 AD3d 1108, 1108; People v Mosher, 45 AD3d 970, 971, lv denied 10 NY3d 814).
Defendant was also arrested and charged with endangering the welfare of a child and other crimes, in regard to an allegation that the had inappropriately touched a 16-year-old child. Initially, we note that defendant waived his right to appeal and, since he has not claimed that this waiver was invalid, he may not now challenge the sentence imposed by County Court as being harsh or excessive ( see People v Ashley, 67 AD3d 1199; People v Campbell, 67 AD3d 1125; People v Hyson, 56 AD3d 890, 892, lv denied 12 NY3d 758). In addition, defendant has not moved to withdraw his plea or vacate the judgment of conviction.