Opinion
KA 01-02427
March 21, 2003.
Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered September 7, 2001, convicting defendant upon his plea of guilty of sexual abuse in the first degree (two counts).
SALVATORE C. ADAMO, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DON I. DALLY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, HURLBUTT, 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:
Contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was knowing, intelligent and voluntary (see People v. Hidalgo, 91 N.Y.2d 733, 736; People v. Burse, 295 A.D.2d 968, 969, lv denied 98 N.Y.2d 709), and that waiver encompasses his challenge to the severity of the sentence (see People v. Lococo, 92 N.Y.2d 825, 827). The further contention of defendant that his plea was not knowingly, intelligently and voluntarily entered survives his waiver of the right to appeal, but defendant failed to preserve that contention for our review by moving to withdraw the plea or vacate the judgment of conviction (see People v. Vallejo, 261 A.D.2d 962, lv denied 93 N.Y.2d 1029). Finally, we reject defendant's contention that defense counsel's advice to defendant to accept the plea offer before a Huntley hearing was held constitutes ineffective assistance of counsel (see People v. Hanesworth, 302 A.D.2d 976 [Feb. 7, 2003]).