PEOPLE v. BUSCH (2009)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20[1] ).   To the extent that defendant challenges the factual sufficiency of his plea allocution, that challenge is encompassed by his valid waiver of the right to appeal (see People v. Morgan, 59 A.D.3d 950, 872 N.Y.S.2d 342 [2009];  People v. Phillips, 56 A.D.3d 1163, 1164, 867 N.Y.S.2d 324;  People v. Spikes, 28 A.D.3d 1101, 1102, 813 N.Y.S.2d 602, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809).   Although the further contention of defendant that his plea was involuntary survives his 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;  People v. Elardo, 52 A.D.3d 1272, 858 N.Y.S.2d 633, lv. denied 11 N.Y.3d 787, 788, 866 N.Y.S.2d 614, 896 N.E.2d 100), defendant failed to preserve that contention for our review (see People v. Neal, 56 A.D.3d 1211, 867 N.Y.S.2d 612;  People v. Collins, 45 A.D.3d 1472, 846 N.Y.S.2d 829, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250).   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;  Neal, 56 A.D.3d 1211, 867 N.Y.S.2d 612;  People v. Sharp, 56 A.D.3d 1230, 867 N.Y.S.2d 802, lv. denied 11 N.Y.3d 900, 873 N.Y.S.2d 276, 901 N.E.2d 770).

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

MEMORANDUM: