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).
Graffeo4th Dept.: 93 A.D.3d 1220, 940 N.Y.S.2d 425 (Cattaraugus) Graffeo, J.Denied.
We reject defendant's contention that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently entered (see People v Lopez, 6 NY3d 248, 256). "County Court expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea" (People v Thompson, 83 AD3d 1535, 1535 [internal quotation marks omitted]; see People v Villar, 115 AD3d 1361, 1361, lv denied 23 NY3d 1044). Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal (see People v Oberdorf, 136 AD3d 1291, 1292; People v Rosado, 70 AD3d 1315, 1316, lv denied 14 NY3d 892). 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 Oberdorf, 136 AD3d at 1292; People v Wackwitz, 93 AD3d 1220, 1221, lv denied 19 NY3d 868). Entered: June 10, 2016
Rosado, 70 A.D.3d 1315, 1316, 894 N.Y.S.2d 703, lv. denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 ). 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 Oberdorf, 136 A.D.3d at 1292, 24 N.Y.S.3d 545; 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 ).It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
OpinionMEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of attempted conspiracy in the second degree (Penal Law §§ 110.00, 105.15 ). Contrary to defendant's contention, the waiver of the right to appeal was knowingly, voluntarily, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Rios, 93 A.D.3d 1349, 1349, 940 N.Y.S.2d 512, lv. denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 ; People v. Wackwitz, 93 A.D.3d 1220, 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 ). Defendant further contends that the plea was not knowing, voluntary, and intelligent because he did not admit that he intended to kill the victim. That contention is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by the valid waiver of the right to appeal (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. Gardner, 101 A.D.3d 1634, 1634, 956 N.Y.S.2d 367 ; Rios, 93 A.D.3d at 1349, 940 N.Y.S.2d 512 ).