People v. Wilson

Mar 16, 2007
Versions:38 A.D.3d 1348
832 N.Y.S.2d 333

Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered June 28, 2005. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the second 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 sexual abuse in the second degree (Penal Law § 130.60 [1]). Contrary to the contention of defendant, his waiver of the right to appeal was voluntarily, knowingly, and intelligently entered (see People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]), despite the fact that defendant gave some “monosyllabic” responses to County Court‘s inquiries with respect to the waiver. 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 (see People v White, 24 AD3d 1220 [2005], lv denied 6 NY3d 820 [2006]), and that challenge is encompassed by the valid waiver of the right to appeal (see People v Spikes, 28 AD3d 1101, 1102 [2006], lv denied 7 NY3d 818 [2006]; People v Bland, 27 AD3d 1052 [2006], lv denied 6 NY3d 892 [2006]). Defendant also failed to preserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Farnsworth, 32 AD3d 1176 [2006], lv denied 7 NY3d 867 [2006]; People v Abdallah, 23 AD3d 1116 [2005], lv denied 6 NY3d 845 [2006]), and this case does not come within the narrow exception to the preservation requirement (see Farnsworth, 32 AD3d at 1177; see generally Lopez, 71 NY2d at 666). In any event, we conclude that defendant‘s challenge lacks merit, based on defendant‘s responses to the court‘s questioning during the plea colloquy (see People v Seeber, 4 NY3d 780 [2005]; Spikes, 28 AD3d at 1102; see generally People v Moissett, 76 NY2d 909, 911 [1990]). Present—Martoche, J.P., Smith, Lunn, Fahey and Peradotto, JJ.