PEOPLE v. MOORE (2009)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20[1] ).   Contrary to the contention of defendant, we conclude that his waiver of the right to appeal is valid.  “Upon our review of the plea allocution, we are satisfied that ‘defendant's waiver of the right to appeal reflects a knowing and voluntary choice’ ” (People v. Hoeft, 42 A.D.3d 968, 969, 838 N.Y.S.2d 842, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 30, 878 N.E.2d 614, quoting People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108).   Although the contention of defendant that his plea was not knowingly and intelligently entered survives his waiver of the right to appeal, that contention is not preserved for our review inasmuch as defendant failed to move to withdraw his plea or to vacate the judgment of conviction (see People v. Smith, 48 A.D.3d 1171, 850 N.Y.S.2d 774, lv. denied 10 N.Y.3d 964, 863 N.Y.S.2d 148, 893 N.E.2d 454).   This case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   There is no support in the record for defendant's further contention that County Court was unaware that it had the discretion to impose a shorter period of postrelease supervision (cf. People v. Stanley, 309 A.D.2d 1254, 1255, 767 N.Y.S.2d 712).   Finally, the challenge by defendant to the severity of the sentence is encompassed by his valid waiver of the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

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

MEMORANDUM: