PEOPLE v. JACKSON (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree (Penal Law § 160.10[2] [b] ).  Contrary to the contention of defendant, the record of the plea colloquy establishes that he knowingly, intelligently and voluntarily waived his right to appeal (see People v. Tantao, 41 A.D.3d 1274, 838 N.Y.S.2d 757, lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761).   “County Court was ‘not required to engage in any particular litany’ in order to obtain a valid waiver of the right to appeal” (id. at 1274-1275, 838 N.Y.S.2d 757, quoting People v. Moissett, 76 N.Y.2d 909, 910, 563 N.Y.S.2d 43, 564 N.E.2d 653).   The valid waiver by defendant of the right to appeal encompasses his challenges to the court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Gilbert, 17 A.D.3d 1164, 793 N.Y.S.2d 847, lv. denied 5 N.Y.3d 762, 801 N.Y.S.2d 257, 834 N.E.2d 1267), and to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   That valid waiver also encompasses defendant's challenge to the factual sufficiency of the plea allocution (see People v. McKay, 5 A.D.3d 1040, 773 N.Y.S.2d 923, lv. denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474;  People v. Carlton, 2 A.D.3d 1353, 770 N.Y.S.2d 502, lv. denied 1 N.Y.3d 625, 777 N.Y.S.2d 24, 808 N.E.2d 1283) and, in any event, defendant failed to preserve that challenge for our review by failing to move to withdraw the plea or to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Hamilton, 45 A.D.3d 1396, 844 N.Y.S.2d 797, lv. denied 10 N.Y.3d 765, 854 N.Y.S.2d 327, 883 N.E.2d 1262;  Carlton, 2 A.D.3d at 1353, 770 N.Y.S.2d 502).   This case does not fall within the rare exception to the preservation requirement inasmuch as the plea allocution does not “cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea” (Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   The further contention of defendant that he was denied effective assistance of counsel does not survive his guilty plea or his waiver of the right to appeal inasmuch as he failed to demonstrate “ ‘that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance’ ” (People v. Leonard, 37 A.D.3d 1148, 1149, 829 N.Y.S.2d 369, lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 557, 868 N.E.2d 240).

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

MEMORANDUM: