People v. Harris

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

Feb 16, 2000

Versions:269 A.D.2d 839

703 N.Y.S.2d 765

2000 N.Y. App. Div. LEXIS 1775

—Judgment unanimously affirmed. Memorandum: The record establishes that defendant knowingly, intelligently and voluntarily waived his right to appeal, and that waiver encompasses his contention regarding the severity of the sentence (see, People v Lococo, 92 NY2d 825, 827; People v Hidalgo, 91 NY2d 733, 737). That waiver also encompasses defendant’s challenge to the factual sufficiency of the plea allocution (see, People v Zimmerman, 219 AD2d 848, lv denied 88 NY2d 856; People v Cooper, 191 AD2d 1046). The contention that defendant did not voluntarily, knowingly and intelligently enter his guilty plea survives his waiver of the right to appeal (see, People v Seaberg, 74 NY2d 1, 10; People v Francabandera, 33 NY2d 429, 434, n 2), but by failing *840to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve that contention for our review (see, People v Toxey, 86 NY2d 725, 726, rearg denied 86 NY2d 839; People v Lopez, 71 NY2d 662, 665). This is not one of those rare cases in which the statements of defendant engender significant doubt with respect to his guilt or otherwise call into question the voluntariness of the plea (see, People v Toxey, supra, at 726; People v Lopez, supra, at 666). “The record shows that defendant was advised of his rights and that his Alford plea (see, North Carolina v Alford, 400 US 25) was knowingly, intelligently and voluntarily entered with a full understanding of its consequences” (People v Alfieri, 201 AD2d 935, lv denied 83 NY2d 908; see, People v Peralta, 231 AD2d 958, lv denied 90 NY2d 909). “The proof that the People intended to offer at trial, placed on the record by the prosecutor, contained strong evidence of defendant’s guilt” (People v Peralta, supra, at 958; see, People v Sanford, 231 AD2d 900, lv denied 89 NY2d 929). (Appeal from Judgment of Erie County Court, DiTullio, J. — Robbery, 2nd Degree.) Present — Pine, J. P., Hayes, Scudder and Lawton, JJ.