PEOPLE v. HIGH (2007)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (Penal Law § 120.05 [2] ).   Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Oltz, 1 A.D.3d 934, 767 N.Y.S.2d 753, lv. denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289).   Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Although defendant stated during the plea allocution that he experienced an alcoholic blackout at the time of the assault and could not remember the event, County Court conducted the requisite inquiry to ensure that the plea was knowingly, voluntarily, and intelligently entered (see id.;   People v. Zodarecky, 15 A.D.3d 861, 789 N.Y.S.2d 594;  see also People v. Allen, 216 A.D.2d 951, 952, 628 N.Y.S.2d 916, lv. denied 87 N.Y.2d 843, 638 N.Y.S.2d 602, 661 N.E.2d 1383).   Further, the record establishes that the waiver by defendant of the right to appeal was knowing, intelligent and voluntary (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222), and his challenge to the severity of the sentence is encompassed by that waiver (see People v. Winchester, 38 A.D.3d 1336, 1338, 831 N.Y.S.2d 798, lv. denied 9 N.Y.3d 853, 840 N.Y.S.2d 779, 872 N.E.2d 892).

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

MEMORANDUM: