PEOPLE v. NESBETT (1998)

 During his plea proceeding, defendant withdrew all prior motions that he had made, thereby waiving his current challenge to County Court's denial of his motion to dismiss the indictment on the ground that he was denied his right to testify before the Grand Jury (see, People v. Capone, 229 A.D.2d 445, 645 N.Y.S.2d 321, lv. denied 89 N.Y.2d 863, 653 N.Y.S.2d 286, 675 N.E.2d 1239;  People v. Castillo, 208 A.D.2d 944, 618 N.Y.S.2d 78;  People v. Addison, 196 A.D.2d 875, 602 N.Y.S.2d 61).  Further, that challenge was encompassed by his waiver of the right to appeal (see, People v. Chappelle, 250 A.D.2d 878, 673 N.Y.S.2d 751;  People v. Addison, supra ).   In any event, there is no merit to the challenge.   Defendant did not serve the District Attorney with notice of his intent to testify before the Grand Jury (see, CPL 190.50[5][a];  People v. Chappelle, supra ).   Further, because defendant was not arraigned in a local criminal court, the District Attorney was not statutorily required to notify defendant of his right to testify (see, CPL 190.50[5][a];  People v. King, 234 A.D.2d 319, 651 N.Y.S.2d 534, lv. denied 89 N.Y.2d 943, 655 N.Y.S.2d 894, 678 N.E.2d 507).

 By failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve for our review his challenge to the sufficiency of the factual allocution (see, People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160, rearg. denied 86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225;  People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   The court was not required to conduct further inquiry;  the facts admitted by defendant did not suggest a potential defense that he acted in self-defense with respect to the correction officers (see, People v. Acevedo, 219 A.D.2d 560, 631 N.Y.S.2d 692, lv. denied 87 N.Y.2d 969, 642 N.Y.S.2d 199, 664 N.E.2d 1262;  People v. Rivera, 180 A.D.2d 767, 580 N.Y.S.2d 398).

 Defendant's waiver of the right to appeal encompassed defendant's right to challenge the severity of the sentence (see, People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

Judgment unanimously affirmed.

MEMORANDUM: