Opinion
February 16, 2000
Appeal from Judgment of Monroe County Court, Marks, J. — Assault, 2nd Degree.
PRESENT: WISNER, J. P., HURLBUTT, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon a plea of guilty of assault in the second degree (Penal Law § 120.05). We reject the People's contention that, by not moving to withdraw his plea or vacate the judgment of conviction, defendant failed to preserve for our review his contention concerning the validity of the waiver of the right to appeal ( cf., People v. Doty, 267 A.D.2d 616 [decided Dec. 9, 1999]; People v. Rumberger, 262 A.D.2d 801; People v. Dopp, 261 A.D.2d 715; People v. Tuper, 256 A.D.2d 636, lv denied 92 N.Y.2d 1039). Preservation was not required. "The role of the appellate courts is to review the record to ensure that the defendant's waiver reflects a knowing, intelligent and voluntary choice" ( People v. Hidalgo, 91 N.Y.2d 733, 736). The record establishes that defendant's waiver was knowing, intelligent and voluntary ( see, People v. Callahan, 80 N.Y.2d 273, 280). That waiver encompasses defendant's contention that the sentence is unduly harsh or severe ( see, People v. Hidalgo, supra, at 737).