PEOPLE v. NEAL (2008)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of felony driving while intoxicated (Vehicle and Traffic Law § 1192[2];  § 1193[1][c][i] ).   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).   Any nonwaivable issues purportedly encompassed by the waiver “are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable” (People v. Norton, 9 A.D.3d 741, 742, 779 N.Y.S.2d 865).   Although defendant's contention that the plea was not knowingly, voluntarily or intelligently entered survives the waiver of the right to appeal, that contention is not preserved for our review because defendant failed to move to withdraw his plea or to vacate the judgment of conviction (see People v. Kearns, 50 A.D.3d 1514, 856 N.Y.S.2d 772;  People v. Aguayo, 37 A.D.3d 1081, 829 N.Y.S.2d 350, lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660).   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).

 The contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to demand a bill of particulars and other items of discovery prior to the plea survives the plea and waiver of the right to appeal “only insofar as [defendant] contends that his plea was infected by the allegedly ineffective assistance and that he entered the plea because of his attorney's allegedly poor performance” (People v. Bethune, 21 A.D.3d 1316, 801 N.Y.S.2d 196, lv. denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160).   We conclude, however, that defendant's contention lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Defendant's further contention concerning ineffective assistance of counsel involves matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 (see Bethune, 21 A.D.3d 1316, 801 N.Y.S.2d 196;  People v. Leno, 21 A.D.3d 1399, 801 N.Y.S.2d 207, lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484).

Finally, the valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez, 6 N.Y.3d at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

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

MEMORANDUM: