Opinion
KA 01-02081
December 30, 2002.
Appeal from a judgment of Onondaga County Court (Aloi, J.), entered March 6, 2001, convicting defendant upon his plea of guilty of criminal possession of a controlled substance in the second degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (GERALD T. BARTH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
The record establishes that defendant knowingly, intelligently and voluntarily waived his right to appeal as part of the plea agreement. Although "[t]he contention that defendant did not voluntarily, knowingly and intelligently enter his plea survives his waiver of the right to appeal, * * * defendant failed to preserve that contention for our review by moving to withdraw his plea or vacate the judgment of conviction" ( People v. DeJesus, 248 A.D.2d 1023, 1023, lv denied 92 N.Y.2d 879; see People v. Vallejo, 261 A.D.2d 962, lv denied 93 N.Y.2d 1029), and the "plea allocution does not qualify for the narrow, `rare case' exception to the preservation doctrine" ( People v. Toxey, 86 N.Y.2d 725, 726, rearg denied 86 N.Y.2d 839, quoting People v. Lopez, 71 N.Y.2d 662, 666).