PEOPLE v. BURNEY (2007)

 Defendant appeals from a judgment convicting him upon his plea of guilty of escape in the second degree (Penal Law § 205.10[2] ).   Contrary to the contention of defendant, the record of the plea proceeding establishes that he validly waived his right to appeal (see People v. Flowers, 31 A.D.3d 1212, 817 N.Y.S.2d 836, lv. denied 7 N.Y.3d 848, 851, 823 N.Y.S.2d 777, 781, 857 N.E.2d 72, 76), and that waiver encompasses his challenge to 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).   The further contention of defendant that his plea was not knowing, voluntary or intelligent survives his waiver of the right to appeal (see People v. Bland, 27 A.D.3d 1052, 1052-1053, 810 N.Y.S.2d 718, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674), but defendant failed to preserve that contention for our review by moving to withdraw the plea or to vacate the judgment of conviction (see People v. Aguayo, 37 A.D.3d 1081, 829 N.Y.S.2d 350;  Flowers, 31 A.D.3d 1212, 817 N.Y.S.2d 836).   This case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5.

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

MEMORANDUM: