PEOPLE v. VALLEJO (1999)

 The record establishes that defendant voluntarily, knowingly and intelligently waived the right to appeal (see, People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 879, 678 N.Y.S.2d 26, 700 N.E.2d 564;  People v. Zimmerman, 219 A.D.2d 848, 631 N.Y.S.2d 951, lv. denied 88 N.Y.2d 856, 644 N.Y.S.2d 702, 667 N.E.2d 352).   That waiver encompasses defendant's challenge to the factual sufficiency of the plea allocution (see, People v. DeJesus, supra;  People v. Harris, 233 A.D.2d 959, 649 N.Y.S.2d 584, lv. denied 89 N.Y.2d 1094, 660 N.Y.S.2d 388, 682 N.E.2d 989;  People v. Zimmerman, supra ).

 The contention of defendant that his plea was not voluntarily, knowingly and intelligently entered survives his waiver of the right to appeal, but defendant failed to preserve that contention for our review by moving to withdraw his plea or vacate the judgment of conviction (see, People v. DeJesus, supra;  People v. Sparrow, 222 A.D.2d 1114, 636 N.Y.S.2d 705, lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 207, 664 N.E.2d 1270).  “Because defendant's statements at the plea allocution do not engender significant doubt with regard to the voluntariness of the plea, the ‘allocution does not qualify for the narrow, “rare case” exception to the preservation doctrine described in People v. Lopez, 71 N.Y.2d 662, 666 [529 N.Y.S.2d 465, 525 N.E.2d 5]’ ” (People v. DeJesus, supra, at 1023, 670 N.Y.S.2d 140).

In addition, because County Court specifically referred to defendant's waiver of its suppression rulings as part of defendant's waiver of the right to appeal, defendant waived his right pursuant to CPL 710.70(2) to seek review of those rulings (see, People v. Collier, 232 A.D.2d 878, 649 N.Y.S.2d 497, lv. denied 89 N.Y.2d 863, 653 N.Y.S.2d 286, 675 N.E.2d 1239;  see also, People v. Hicks, 254 A.D.2d 48, 679 N.Y.S.2d 277, lv. denied 92 N.Y.2d 1033, 684 N.Y.S.2d 498, 707 N.E.2d 453;  cf., People v. Woody, 240 A.D.2d 770, 660 N.Y.S.2d 31, lv. denied 90 N.Y.2d 912, 663 N.Y.S.2d 524, 686 N.E.2d 236).

 The valid waiver by defendant of his right to appeal also encompasses his contention that his sentence is unduly harsh or severe (see, People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  see also, People v. Lococo, 92 N.Y.2d 825, 677 N.Y.S.2d 57, 699 N.E.2d 416).  In any event, we decline to modify a sentence that defendant freely bargained for and received.

Judgment unanimously affirmed.

MEMORANDUM: