PEOPLE v. LORE (2009)

 On appeal from a judgment convicting him upon his plea of guilty of attempted rape in the first degree (Penal Law §§ 110.00, 130.35[4] ), defendant contends that he did not knowingly, intelligently and voluntarily waive his right to appeal.   We reject that contention (see People v. Ball, 20 A.D.3d 925, 797 N.Y.S.2d 331, lv. denied 5 N.Y.3d 850, 806 N.Y.S.2d 170, 840 N.E.2d 139;  People v. Chrispen, 306 A.D.2d 916, 761 N.Y.S.2d 913, lv. denied 100 N.Y.2d 619, 767 N.Y.S.2d 402, 799 N.E.2d 625).   The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).   Defendant's challenge to the factual sufficiency of the plea allocution is also encompassed by the valid waiver of the right to appeal (see Ball, 20 A.D.3d 925, 797 N.Y.S.2d 331) 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).   Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of rape in the first degree under Penal Law § 130.35(4), and it must therefore be amended to reflect that he was convicted of attempted rape in the first degree under Penal Law §§ 110.00 and 130.35(4) (see People v. Martinez, 37 A.D.3d 1099, 828 N.Y.S.2d 828, lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 558, 868 N.E.2d 241).

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

MEMORANDUM: