People v. Elardo, 52 A.D.3d 1272

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

Memorandum: On appeal from a judgment convicting her upon a plea of guilty of forgery in the second degree (Penal Law § 170.10 [1]), defendant challenges the validity of her waiver of the right to appeal. We reject that challenge (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Summers, 242 AD2d 869 [1997], lv denied 91 NY2d 881 [1997]). Although the contention of defendant that her plea was not knowingly, voluntarily and intelligently entered survives her valid waiver of the right to appeal (see People v Burney, 41 AD3d 1221 [2007], lv denied 9 NY3d 863 [2007]; People v Landers, 28 AD3d 1072 [2006], lv denied 7 NY3d 758 [2006]; People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]), 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 Bland, 27 AD3d 1052 [2006], lv denied 6 NY3d 892 [2006]; People v McKay, 5 AD3d 1040 [2004], lv denied 2 NY3d 803 [2004]). This case does not fall within the narrow exception to the preservation requirement (see generally People v Lopez, 71 NY2d 662, 666 [1988]). The valid waiver by defendant of the right to appeal encompasses her challenge to the severity of the sentence (see Lopez, 6 NY3d at 255-256; People v Hidalgo, 91 NY2d 733, 737 [1998]). Present—Martoche, J.P., Smith, Centra, Lunn and Pine, JJ.

Case Details

Case Name: People v. Elardo

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Jun 6, 2008

Citations: 52 A.D.3d 1272; 858 N.Y.S.2d 633

Court Abbreviation: N.Y. App. Div.