People v. Lore

Feb 11, 2009
Reporters:
,

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [4]), defendant contends that he did not knowingly, intelligently and voluntarily waive his right to appeal. We reject that contention (see People v Ball, 20 AD3d 925 [2005], lv denied 5 NY3d 850 [2005]; People v Chrispen, 306 AD2d 916 [2003], lv denied 100 NY2d 619 [2003]). The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737 [1998]). Defendant‘s challenge to the factual sufficiency of the plea allocution is also encompassed by the valid waiver of the right to appeal (see Ball, 20 AD3d 925 [2005]) and, in any event, defendant failed to preserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665 [1988]). Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of rape in the first degree under Penal Law § 130.35 (4), and it must therefore be amended to reflect that he was convicted of attempted rape in the first degree under Penal Law §§ 110.00 and 130.35 (4) (see People v Martinez, 37 AD3d 1099 [2007], lv denied 8 NY3d 947 [2007]).