People v. Burney

Jun 8, 2007
Versions:41 A.D.3d 1221
838 N.Y.S.2d 278

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 escape in the second degree (Penal Law § 205.10 [2]). Contrary to the contention of defendant, the record of the plea proceeding establishes that he validly waived his right to appeal (see People v Flowers, 31 AD3d 1212 [2006], lv denied 7 NY3d 848 [2006]), and that waiver encompasses his challenge to the severity of the sentence (see People v Lococo, 92 NY2d 825, 827 [1998]). The further contention of defendant that his plea was not knowing, voluntary or intelligent survives his waiver of the right to appeal (see People v Bland, 27 AD3d 1052, 1052-1053 [2006], lv denied 6 NY3d 892 [2006]), but defendant failed to preserve that contention for our review by moving to withdraw the plea or to vacate the judgment of conviction (see People v Aguayo, 37 AD3d 1081 [2007]; Flowers, 31 AD3d 1212 [2006]). This case does not fall within the rare exception to the preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988]). Present—Scudder, P.J., Hurlbutt, Lunn, Green and Pine, JJ.