Opinion
KA 02-02144.
Decided on March 19, 2004.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered June 18, 2002. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES R. DALEY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15). Contrary to the contention of defendant, his waiver of the right to appeal was voluntary, knowing, and intelligent ( see People v. Moissett, 76 N.Y.2d 909, 910-911; People v. Ray, 307 A.D.2d 754, 755, lv denied 100 N.Y.2d 624). The contention of defendant that he did not voluntarily, knowingly, and intelligently enter his guilty plea survives the waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10; People v. DeJesus, 248 A.D.2d 1023, lv denied 92 N.Y.2d 878), but he failed to preserve that contention for our review by moving to withdraw his plea or vacate the judgment of conviction ( see People v. Royal, 306 A.D.2d 886, 886-887, lv denied 100 N.Y.2d 624; People v. Jackson, 278 A.D.2d 875, lv denied 96 N.Y.2d 759). The waiver by defendant of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution ( see DeJesus, 248 A.D.2d at 1023). Moreover, defendant failed to preserve that contention for our review ( see People v. Lopez, 71 N.Y.2d 662, 665). In any event, defendant's challenge lacks merit ( see People v. Spickerman, 307 A.D.2d 774, lv denied 100 N.Y.2d 624; People v. Every, 272 A.D.2d 947, 947-948, lv denied 95 N.Y.2d 865).