People v. Busch

Mar 20, 2009
Versions:60 A.D.3d 1393
876 N.Y.S.2d 798

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20 [1]). To the extent that defendant challenges the factual sufficiency of his plea allocution, that challenge is encompassed by his valid waiver of the right to appeal (see People v Morgan, 59 AD3d 950 [2009]; People v Phillips, 56 AD3d 1163, 1164 [2008]; People v Spikes, 28 AD3d 1101, 1102 [2006], lv denied 7 NY3d 818 [2006]). Although the further contention of defendant that his plea was involuntary survives his waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Elardo, 52 AD3d 1272 [2008], lv denied 11 NY3d 787 [2008]), defendant failed to preserve that contention for our review (see People v Neal, 56 AD3d 1211 [2008]; People v Collins, 45 AD3d 1472 [2007], lv denied 10 NY3d 861 [2008]). This case does not fall within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988]; Neal, 56 AD3d 1211 [2008]; People v Sharp, 56 AD3d 1230 [2008], lv denied 11 NY3d 900 [2008]). Present—Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.