31 A.D.3d 1197
N.Y. App. Div.
2006

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JOHNNIE McMILLON, Appellant.

Appellate Division of the Supreme Court of New York, Fourth Department

817 N.Y.S.2d 566

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JOHNNIE McMILLON, Appellant. [817 NYS2d 566]—Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered December 8, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.

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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]). Contrary to the contention of defendant, the record establishes that he knowingly and intelligently waived his right to appeal (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Moissett, 76 NY2d 909, 910-911 [1990]; cf. People v Lopez, 6 NY3d 248, 256-257 [2006]). Although the challenge by defendant to County Court’s refusal to suppress identification testimony survives his plea of guilty (see CPL 710.70 [2]), that challenge is encompassed by his waiver of the right to appeal (see Kemp, 94 NY2d at 833; People v Pan Zhi Feng, 15 AD3d 862 [2005], lv denied 5 NY3d 809 [2005]; People v Wilkins, 1 AD3d 962, 963 [2003], lv denied 1 NY3d 603 [2004]). Present—Hurlbutt, J.P., Kehoe, Gorski, Green and Pine, JJ.