Opinion
2017–11024 S.C.I. No. 16-01231
05-29-2019
The PEOPLE, etc., Respondent, v. Christopher ROSS, Appellant.
Marianne Karas, Thornwood, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
Marianne Karas, Thornwood, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the County Court, Westchester County (Larry J. Schwartz, J.), rendered August 23, 2017, convicting him of attempted criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that his purported waiver of the right to appeal was invalid and that his plea of guilty was not knowingly, voluntarily, and intelligently entered. As the defendant's challenge to the voluntariness of his plea survives even a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Innocent, 132 A.D.3d 696, 696, 17 N.Y.S.3d 505 ), we need not determine whether the defendant's waiver of the right to appeal was invalid (see People v. Bernard, 155 A.D.3d 1059, 65 N.Y.S.3d 457 ; People v. Ward, 140 A.D.3d 903, 904, 32 N.Y.S.3d 648 ; People v. Harvey, 137 A.D.3d 1162, 1163, 26 N.Y.S.3d 890 ). The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to vacate his plea or otherwise raise the issue in the County Court, and the exception to the preservation rule does not apply (see CPL 470.05 ; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Peralta, 171 A.D.3d 948, 95 N.Y.S.3d 887 [2d Dept. 2019] ). In any event, the record demonstrates that the defendant's plea was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Ribeiro, 171 A.D.3d 1219, 96 N.Y.S.3d 875, [2d Dept. 2019] ).
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.