PEOPLE v. HINKSON (2009)

 On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ), defendant contends that his waiver of the right to appeal was invalid.   We reject that contention.   The record “ establish[es] that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  cf. People v. Cain, 29 A.D.3d 1157, 814 N.Y.S.2d 417;  People v. Popson, 28 A.D.3d 870, 812 N.Y.S.2d 194), and that he knowingly, intelligently and voluntarily waived the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by that valid waiver of the right to appeal (see People v. Spivey, 9 A.D.3d 886, 779 N.Y.S.2d 373, lv. denied 3 N.Y.3d 712, 785 N.Y.S.2d 40, 818 N.E.2d 682) and, in any event, defendant failed to preserve that challenge for our review (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Owes, 34 A.D.3d 1320, 1321, 823 N.Y.S.2d 808).

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

MEMORANDUM: