Opinion
89 KA 14-02223.
02-05-2016
The PEOPLE of the State of New York, Respondent, v. Kenneth S. LATHROP, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his guilty plea of reckless assault of a child (Penal Law § 120.021 ). Contrary to defendant's contention, the record establishes that he validly waived his right to appeal both orally and in writing before pleading guilty. The record establishes that Supreme Court conducted “ ‘an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Glasper, 46 A.D.3d 1401, 1401, 847 N.Y.S.2d 875, lv. denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252; see People v. Barber, 117 A.D.3d 1430, 1430, 984 N.Y.S.2d 754, lv. denied 24 N.Y.3d 1081, 1 N.Y.S.3d 8, 25 N.E.3d 345). Defendant contends that his plea was not knowingly and intelligently entered because he did not admit that his actions caused a serious physical injury to the child. Defendant's contention is actually a challenge to the factual sufficiency of the plea allocution (see People v. Schmidli, 118 A.D.3d 1491, 1491, 987 N.Y.S.2d 540, lv. denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147; People v. Daniels, 59 A.D.3d 943, 943, 872 N.Y.S.2d 335, lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587), which does not survive his valid waiver of the right to appeal (see People v. Zimmerman, 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427, lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334; People v. Wackwitz, 93 A.D.3d 1220, 1221, 940 N.Y.S.2d 425, lv. denied 19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440; Daniels, 59 A.D.3d at 943, 872 N.Y.S.2d 335). In any event, defendant failed to preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see Wackwitz, 93 A.D.3d at 1221, 940 N.Y.S.2d 425; People v. Copp, 78 A.D.3d 1548, 1549, 910 N.Y.S.2d 798, lv. denied 16 N.Y.3d 797, 919 N.Y.S.2d 513, 944 N.E.2d 1153). To the extent that defendant contends that the court abused its discretion in denying his motion to withdraw his plea, we conclude that it is without merit (see People v. Davis, 129 A.D.3d 1613, 1613–1614, 11 N.Y.S.3d 778, lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580). The valid waiver of the right to appeal encompasses defendant's further contention that the sentence is unduly harsh and severe (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., SMITH, CENTRA, CARNI, and SCUDDER, JJ., concur.