PEOPLE v. KEARNS (2008)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of sexual abuse in the first degree (Penal Law § 130.65[1] ) and one count of forcible touching (§ 130.52).   Contrary to the contention of defendant, his waiver of the right to appeal was voluntarily, knowingly, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Wilson, 38 A.D.3d 1348, 832 N.Y.S.2d 333, lv. denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901).   That valid waiver of the right to appeal encompasses defendant's contentions concerning County Court's refusal to sever the indictment (see People v. Dean, 48 A.D.3d 1244, 852 N.Y.S.2d 545), the court's denial of defendant's request for youthful offender status (see People v. Williams, 37 A.D.3d 1193, 829 N.Y.S.2d 802), and the severity of the sentence (see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Wilson, 289 A.D.2d 1088, 735 N.Y.S.2d 463, lv. denied 98 N.Y.2d 656, 745 N.Y.S.2d 516, 772 N.E.2d 619).

 Although defendant's further contention that the plea was not knowingly, voluntarily or intelligently entered survives the waiver of the right to appeal (see generally People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022), that contention is not preserved for our review inasmuch as defendant failed to move to withdraw his plea or to vacate the judgment of conviction (see People v. Bennefield, 306 A.D.2d 911, 761 N.Y.S.2d 906, lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 485, 869 N.E.2d 661, 9 N.Y.3d 863, 840 N.Y.S.2d 892, 872 N.E.2d 1198).   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) and, in any event, defendant's plea was knowingly, voluntarily and intelligently entered (see e.g. People v. Davenport, 273 A.D.2d 926, 711 N.Y.S.2d 809).

 The 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 because there was no showing 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” (Dean, 48 A.D.3d at 1245, 852 N.Y.S.2d 545 [internal quotation marks omitted] ).

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

MEMORANDUM: