People v. Peters

Feb 6, 2009
Versions:59 A.D.3d 928
873 N.Y.S.2d 397

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 murder in the second degree (Penal Law § 125.25 [3]). Contrary to the contention of defendant, the record of the plea colloquy establishes that his waiver of the right to appeal was voluntary, knowing and intelligent (see People v Branch, 49 AD3d 1206 [2008], lv denied 10 NY3d 932 [2008]). “The further contention of defendant that his plea was not voluntarily, knowingly, and intelligently entered is actually a challenge to the factual sufficiency of the plea allocution . . . , and that challenge is encompassed by the valid waiver of the right to appeal” (People v Wilson, 38 AD3d 1348 [2007], lv denied 9 NY3d 927 [2007]; see Branch, 49 AD3d 1206 [2008]). In any event, defendant failed to preserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665 [1988]), and this case does not fall within the narrow exception to the preservation requirement (see id. at 666). Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.