PEOPLE v. WILLIAMS (2005)

 On appeal from a judgment convicting him, upon his plea of guilty, of assault in the first degree (Penal Law § 120.10[1] ) and robbery in the first degree (§ 160.15), defendant contends that his waiver of the right to appeal is invalid.   We reject that contention.   It is well settled that “no particular litany is required to effect a valid waiver” of the right to appeal (People v. Gress, 4 A.D.3d 830, 830, 771 N.Y.S.2d 450, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919;  see People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653;  People v. McLemore, 303 A.D.2d 950, 755 N.Y.S.2d 905, lv. denied 100 N.Y.2d 540, 763 N.Y.S.2d 6, 793 N.E.2d 420).   Here, as in Gress, “not only did County Court question defendant concerning his desire to waive his right to appeal, but defendant was present when the prosecutor stated that the waiver of the right to appeal was a condition of the plea” (Gress, 4 A.D.3d at 830, 771 N.Y.S.2d 450).  “The record establishes that defendant understood that, by waiving his right to appeal, he was relinquishing the right to challenge his conviction” (People v. Summers [Appeal No. 2], 242 A.D.2d 869, 869, 662 N.Y.S.2d 912, lv. denied 91 N.Y.2d 881, 668 N.Y.S.2d 580, 691 N.E.2d 652;  see People v. Lynch, 4 A.D.3d 809, 771 N.Y.S.2d 435, lv. denied 2 N.Y.3d 742, 778 N.Y.S.2d 468, 810 N.E.2d 921).

 To the extent that defendant contends that his plea of guilty was not knowingly, voluntarily or intelligently entered and that he was denied effective assistance of counsel, those contentions survive the waiver of the right to appeal (see People v. Irvine, 303 A.D.2d 1013, 756 N.Y.S.2d 809, lv. denied 100 N.Y.2d 539, 763 N.Y.S.2d 5, 793 N.E.2d 419;  People v. French, 292 A.D.2d 813, 738 N.Y.S.2d 925, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229).   By failing to move to withdraw his plea or vacate the judgment of conviction, however, defendant failed to preserve the former contention for our review (see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   The contention of defendant that his plea was affected by ineffective assistance of counsel involves matters dehors the record, which are not reviewable on this direct appeal (see People v. Prince, 5 A.D.3d 1098, 1099, 773 N.Y.S.2d 325, lv. denied 2 N.Y.3d 804, 781 N.Y.S.2d 304, 814 N.E.2d 476;  People v. Davis, 307 A.D.2d 722, 723, 762 N.Y.S.2d 327, lv. denied 100 N.Y.2d 619, 767 N.Y.S.2d 402, 403, 799 N.E.2d 625, 626;  People v. Sanders, 289 A.D.2d 101, 735 N.Y.S.2d 24, lv. denied 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367).   Finally, the valid waiver of the right to appeal encompasses defendant's challenges to the denial of youthful offender status (see People v. Dorman, 5 A.D.3d 1094, 773 N.Y.S.2d 320, lv. denied 2 N.Y.3d 798, 781 N.Y.S.2d 297, 814 N.E.2d 469) and the severity of the sentence (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416).

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

MEMORANDUM: