PEOPLE v. GRIMES (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, rape in the first degree (Penal Law § 130.35[1] ).   Contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was knowingly, intelligently and voluntarily entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Peterson, 35 A.D.3d 1195, 825 N.Y.S.2d 622, lv. denied 8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462).   County Court thoroughly reviewed the consequences of the waiver with defendant, after which defendant indicated that he understood those consequences and waived the right to appeal both orally and in writing (see Peterson, 35 A.D.3d 1195, 825 N.Y.S.2d 622).   We reject defendant's further contention that the waiver of the right to appeal is against public policy (see id.;   see generally People v. Muniz, 91 N.Y.2d 570, 573-574, 673 N.Y.S.2d 358, 696 N.E.2d 182;  People v. Callahan, 80 N.Y.2d 273, 279-280, 590 N.Y.S.2d 46, 604 N.E.2d 108).   The valid waiver by defendant of the right to appeal encompasses his challenge to the court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. McMillon, 31 A.D.3d 1197, 817 N.Y.S.2d 566;  People v. Pan Zhi Feng, 15 A.D.3d 862, 789 N.Y.S.2d 592, lv. denied 5 N.Y.3d 809, 812, 803 N.Y.S.2d 38, 41, 836 N.E.2d 1161, 1164), as well as his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 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).

 The challenge by defendant to the factual sufficiency of the plea allocution is also encompassed by his valid waiver of the right to appeal (see People v. Jackson, 50 A.D.3d 1615, 856 N.Y.S.2d 432) and, in any event, defendant failed to preserve that challenge for our review.   Defendant failed to move to withdraw his plea and did not challenge the factual sufficiency of the plea allocution in his postjudgment motion pursuant to CPL 440.10 (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Vibbert, 48 A.D.3d 1259, 849 N.Y.S.2d 917, lv. denied 10 N.Y.3d 817, 857 N.Y.S.2d 51, 886 N.E.2d 816). Defendant also failed to preserve for our review his contention that the plea was involuntary inasmuch as he failed to move to withdraw the plea, and his postjudgment motion pursuant to CPL 440.10 did not seek vacatur on that ground (see People v. Tantao, 41 A.D.3d 1274, 1275, 838 N.Y.S.2d 757, lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761).   In any event, that contention also is without merit.   The court's denial of the request by defendant for an adjournment of the plea proceeding to afford him more time to consider whether to enter the plea does not render the plea involuntary.   There is no indication on the record before us that defendant's request was anything more than a delaying tactic (see People v. Ippolito, 226 A.D.2d 285, 641 N.Y.S.2d 633, lv. denied 88 N.Y.2d 966, 647 N.Y.S.2d 720, 670 N.E.2d 1352).   Further, “the fact that defendant was required ‘to accept or reject the plea offer within a short time period does not amount to coercion’ ” (People v. Irvine, 42 A.D.3d 949, 949, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615;  see People v. Branton, 35 A.D.3d 1035, 1036, 826 N.Y.S.2d 489, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661).

Finally, we note that the certificate of conviction incorrectly reflects that defendant was indicted for and convicted of criminal impersonation in the first degree, and it must therefore be amended to reflect that defendant was indicted for and convicted of criminal impersonation in the second degree (see generally People v. Saxton, 32 A.D.3d 1286, 821 N.Y.S.2d 353).

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

MEMORANDUM: