PEOPLE v. GRAHAM (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree (Penal Law §§ 110.00, 130.35[1] ) and attempted kidnapping in the second degree (§§ 110.00, 135.20).  Contrary to defendant's contention, the oral and written waivers of the right to appeal establish that defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Moore, 158 A.D.3d 1312, 1312, 68 N.Y.S.3d 361 [4th Dept. 2018], lv. denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018];  People v. Cochran, 156 A.D.3d 1474, 1474, 65 N.Y.S.3d 894 [4th Dept. 2017], lv denied 30 N.Y.3d 1114, 77 N.Y.S.3d 339, 101 N.E.3d 980 [2018] ).  While we agree with defendant that the written waiver includes improperly overbroad language, it is well established that “[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable” (People v. Weatherbee, 147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 [4th Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] [internal quotation marks omitted] ).  Defendant's valid waiver of the right to appeal forecloses his contentions that County Court erred in compelling him to submit to a buccal swab for DNA analysis and in failing to adjourn the trial (see People v. Smith, 138 A.D.3d 1415, 1416, 29 N.Y.S.3d 726 [4th Dept. 2016];  see generally People v. Watt, 82 A.D.3d 912, 912, 918 N.Y.S.2d 347 [2d Dept. 2011], lv denied 16 N.Y.3d 900, 926 N.Y.S.2d 36, 949 N.E.2d 984 [2011] ).  Furthermore, those contentions are also forfeited by his plea of guilty (see People v. King, 155 A.D.3d 1574, 1574, 63 N.Y.S.3d 286 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018];  Smith, 138 A.D.3d at 1416, 29 N.Y.S.3d 726;  People v. Simcox, 219 A.D.2d 869, 869, 631 N.Y.S.2d 956 [4th Dept. 1995] ).

Although a valid waiver of the right to appeal does not preclude defendant's challenge to the voluntariness of his plea, defendant failed to preserve that challenge for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Mobayed, 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018];  People v. Cruz, 81 A.D.3d 1300, 1301, 916 N.Y.S.2d 555 [4th Dept. 2011], lv denied 17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096 [2011] ), and the “narrow, ‘rare case’ exception to the preservation doctrine” does not apply here (People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995], rearg. denied 86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225 [1995];  see generally People v. Hansen, 95 N.Y.2d 227, 230–232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ).