PEOPLE v. WHITE (2009)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[4] ).   Defendant's waiver of the right to appeal was knowing and voluntary (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022), and that valid waiver encompasses defendant's challenges to the severity of the sentence (see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145) and the factual sufficiency of the plea allocution (see People v. Spikes, 28 A.D.3d 1101, 813 N.Y.S.2d 602, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809;  People v. Bland, 27 A.D.3d 1052, 810 N.Y.S.2d 718, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674).   We note, however, that Supreme Court's suppression ruling was expressly excluded from defendant's waiver of the right to appeal (see generally People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754), and thus defendant's challenge to the suppression ruling is properly before us.   Nevertheless, we reject that challenge.   Defendant contends that the identification of him by two witnesses should have been suppressed because the photo arrays from which the identifications were made were unduly suggestive.   Although there are slight differences between defendant's hair, including defendant's facial hair, and the hair of the other persons depicted in the photo arrays, the physical characteristics of defendant and the other persons depicted were otherwise sufficiently similar.   Thus, it cannot be said that the viewer's attention was “ ‘drawn to defendant's photo in such a way as to indicate that the police were urging a particular selection’ ” (People v. Kirkland, 49 A.D.3d 1260, 1261, 856 N.Y.S.2d 339, lv. denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448, 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451).   We reject defendant's further contention that the police should have included another person's photograph in the photo arrays based on the fact that the victim had indicated in an earlier identification procedure that he was “70 percent” sure that the other person was involved in the robbery.   The police had obtained information subsequent to that earlier identification that eliminated that person as a suspect, and the police are not required to include a photograph of a person who has been ruled out as a suspect (see People v. Hakeem, 210 A.D.2d 16, 619 N.Y.S.2d 33, lv. denied 85 N.Y.2d 971, 629 N.Y.S.2d 731, 653 N.E.2d 627, 87 N.Y.2d 900, 641 N.Y.S.2d 230, 663 N.E.2d 1260;  People v. Woodward, 156 A.D.2d 196, 548 N.Y.S.2d 454, lv. denied 75 N.Y.2d 926, 555 N.Y.S.2d 45, 554 N.E.2d 82).

 We further reject the contention of defendant that his plea was not voluntarily entered and that the court therefore erred in denying his motion to withdraw his plea.   The record establishes that the plea was voluntarily entered, and there are no statements in the plea allocution that cast doubt upon defendant's guilt (see People v. Seeber, 4 N.Y.3d 780, 781-782, 793 N.Y.S.2d 826, 826 N.E.2d 797;  People v. Worthy, 46 A.D.3d 1382, 847 N.Y.S.2d 806, lv. denied 10 N.Y.3d 773, 854 N.Y.S.2d 334, 883 N.E.2d 1269).

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

MEMORANDUM: