PEOPLE v. GRAHAM (2007)

Judgment, Supreme Court, New York County (Bruce Allen, J. at suppression hearing;  Micki A. Scherer, J. at plea;  Charles H. Solomon, J. at sentence), rendered October 14, 2003, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

 Defendant made a valid waiver of his right to appeal.   His only claim that survives this waiver is his challenge to the voluntariness of his plea (see People v. Byrne, 37 A.D.3d 179, 829 N.Y.S.2d 75 [2007] ).   However, since defendant did not move to withdraw his plea, and since this case does not come within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), his challenge to the validity of his plea is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would conclude that defendant's plea was knowing, intelligent and voluntary.   The court fully advised defendant of the consequences of his plea, and of any breach of his plea agreement.

 Defendant's valid waiver of his right to appeal forecloses review of his suppression claim, including interest of justice review (People v. Seaberg, 74 N.Y.2d 1, 9-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ).   His claim relating to his right to be present at legal arguments in connection with his suppression motion is not only foreclosed by this waiver, but by the guilty plea itself (see People v. Hansen, 95 N.Y.2d 227, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];  People v. Taylor, 65 N.Y.2d 1, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985] ).   Were we to find otherwise, we would find both claims without merit.