PEOPLE v. WACKWITZ (2012)

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of grand larceny in the third degree (Penal Law former § 155.35) and scheme to defraud in the first degree (§ 190.65[1][b] ).  In appeal No. 2, he appeals from a judgment convicting him, upon the same plea of guilty, of burglary in the third degree (§ 140.20).   Contrary to the contention of defendant in both appeals, his waiver of the right to appeal was valid.   County Court “expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not treat that right as one of the rights automatically forfeited by a guilty plea” (People v. Bilus, 44 A.D.3d 325, 326, 843 N.Y.S.2d 32, lv. denied 9 N.Y.3d 1031, 852 N.Y.S.2d 16, 881 N.E.2d 1203;  see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  cf. People v. Moyett, 7 N.Y.3d 892, 826 N.Y.S.2d 597, 860 N.E.2d 59).   The valid waiver encompasses defendant's challenge to the factual sufficiency of the plea allocution (see People v. Jackson, 50 A.D.3d 1615, 1615–1616, 856 N.Y.S.2d 432, lv. denied 10 N.Y.3d 960, 863 N.Y.S.2d 144, 893 N.E.2d 450).   In any event, defendant failed to move to withdraw the plea or to vacate the judgments of conviction on that ground and thus 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).   This case does not fall within the rare exception to the preservation requirement set forth in Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5.   Even assuming, arguendo, that defendant's statements during the colloquy called into question the voluntariness of the plea and thus that the preservation exception applies, we conclude upon our review of the record that the court made sufficient further inquiry to ensure that defendant's plea was knowing and voluntary (see id.).

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

MEMORANDUM: