PEOPLE v. SELLERS (2006)

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3] ).   Defendant voluntarily, knowingly and intelligently waived his right to appeal (see 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), and that waiver encompasses his challenge to the factual sufficiency of the plea allocution (see People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 26, 700 N.E.2d 564).   The further contention of defendant that his plea was not voluntarily, knowingly and intelligently entered survives the waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022), but defendant failed to preserve that contention for our review (see People v. Lazo, 16 A.D.3d 1153, 790 N.Y.S.2d 902, lv. denied 4 N.Y.3d 887, 798 N.Y.S.2d 733, 831 N.E.2d 978).   The motion by defendant to withdraw the plea based upon the alleged failure of the People to fulfill their obligation under the plea agreement does not preserve his present contention for our review (see People v. Escalante, 16 A.D.3d 984, 984-985, 792 N.Y.S.2d 253, lv. denied 5 N.Y.3d 788, 793, 801 N.Y.S.2d 809, 814, 835 N.E.2d 669, 674) and, in any event, defendant withdrew that motion.

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

MEMORANDUM: