PEOPLE v. CARMODY (2008)

 Defendant appeals from a judgment convicting her upon her plea of guilty of criminal facilitation in the second degree (Penal Law § 115.05).   Contrary to the contentions of defendant, her waiver of the right to appeal is not void as against public policy (see generally People v. Muniz, 91 N.Y.2d 570, 573-575, 673 N.Y.S.2d 358, 696 N.E.2d 182;  People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Seaberg, 74 N.Y.2d 1, 7-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022), and the waiver was knowingly, intelligently and voluntarily entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Lovett, 8 A.D.3d 1007, 778 N.Y.S.2d 243, lv. denied 3 N.Y.3d 673, 677, 784 N.Y.S.2d 12, 15, 817 N.E.2d 830, 833).   Defendant's challenge to the severity of the sentence is encompassed by that valid waiver of the right to appeal (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Clark, 239 A.D.2d 939, 659 N.Y.S.2d 612, lv. denied 90 N.Y.2d 892, 662 N.Y.S.2d 434, 685 N.E.2d 215).   Although the further contention of defendant that her plea was not knowingly and intelligently entered survives her waiver of the right to appeal, that contention is not preserved for our review inasmuch as defendant failed to move to withdraw her plea or to vacate the judgment of conviction (see People v. Smith, 48 A.D.3d 1171, 850 N.Y.S.2d 774).   This case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

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

MEMORANDUM: