PEOPLE v. DEAN (2008)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of various counts arising out of, inter alia, his theft of property.   Contrary to the contention of defendant, the record of the plea colloquy establishes that he knowingly, intelligently and voluntarily waived his right to appeal (see People v. Tantao, 41 A.D.3d 1274, 838 N.Y.S.2d 757, lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761).  “County Court was ‘not required to engage in any particular litany’ in order to obtain a valid waiver of the right to appeal” (id. at 1274-1275, 838 N.Y.S.2d 757, quoting People v. Moissett, 76 N.Y.2d 909, 910, 563 N.Y.S.2d 43, 564 N.E.2d 653).   The valid waiver by defendant of the right to appeal encompasses his challenges to the court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Gilbert, 17 A.D.3d 1164, 793 N.Y.S.2d 847, lv. denied 5 N.Y.3d 762, 801 N.Y.S.2d 257, 834 N.E.2d 1267), and the court's refusal to sever the indictment (see People v. Jefferson, 161 A.D.2d 898, 557 N.Y.S.2d 463, lv. denied 76 N.Y.2d 790, 559 N.Y.S.2d 995, 559 N.E.2d 689).   The challenge by defendant to the factual sufficiency of the plea allocution also does not survive his valid waiver of the right to appeal (see People v. Collins, 45 A.D.3d 1472, 846 N.Y.S.2d 829) and, in any event, by failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve that challenge for our review (see id.;   People v. Hamilton, 45 A.D.3d 1396, 844 N.Y.S.2d 797).   Although defendant further contends that he was denied effective assistance of counsel, that contention does not survive his guilty plea or his waiver of the right to appeal because there was no showing “ ‘that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance’ ” (People v. Leonard, 37 A.D.3d 1148, 829 N.Y.S.2d 369, lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 557, 868 N.E.2d 240).   Finally, the bargained-for sentence is not unduly harsh or severe.

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

MEMORANDUM: