Opinion
March 13, 1998
Appeal from the Supreme Court, Monroe County, Affronti, J. — Criminal Sale Controlled Substance, 1st Degree.)
Present — Green, J. P., Pine, Lawton, Hayes and Wisner, JJ.
Judgment unanimously affirmed. Memorandum: The record establishes that defendant made a voluntary, knowing and intelligent waiver of the right to appeal (see, People v. Zimmerman, 219 A.D.2d 848, lv denied 88 N.Y.2d 856; People v. DeLuna, 193 A.D.2d 466, lv denied 81 N.Y.2d 1072). That waiver encompasses defendant's challenge to the factual sufficiency of the plea allocution (see, People v. Zimmerman, supra; People v. Cooper, 191 A.D.2d 1046). The contention that defendant did not voluntarily, knowingly and intelligently enter his guilty plea survives his waiver of the right to appeal (see, People v. Seaberg, 74 N.Y.2d 1, 10; People v. Francabandera, 33 N.Y.2d 429, 434, n. 2), but defendant failed to preserve that contention for our review by moving to withdraw his plea or vacate the judgment of conviction (see, People v. Sparrow, 222 A.D.2d 1114, lv denied 87 N.Y.2d 977). Because defendant's statements at the plea allocution do not engender significant doubt with regard to the voluntariness of the plea, the "allocution does not qualify for the narrow, `rare case' exception to the preservation doctrine described in People v. Lopez ( 71 N.Y.2d 662, 666)" (People v. Toxey, 86 N.Y.2d 725, 726, rearg denied 86 N.Y.2d 839; see, People v. Paul, 248 A.D.2d 1010 [decided herewith]). We decline to exercise our power to address defendant's contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).