PEOPLE v. SZYMANSKI (2023)

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 two counts of course of sexual conduct against a child in the second degree (Penal Law § 130.80 [1] [b]). Contrary to defendant's contention, the plea colloquy establishes that he knowingly, voluntarily, and intelligently waived the right to appeal (see People v. Mess, 186 A.D.3d 1069, 1069, 127 N.Y.S.3d 360 [4th Dept. 2020]; see generally People v. Thomas, 34 N.Y.3d 545, 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]). Although defendant's challenge to the voluntariness of his plea survives his valid waiver of the right to appeal (see Thomas, 34 N.Y.3d at 558, 122 N.Y.S.3d 226, 144 N.E.3d 970; People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]), 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 People v. Garcia-Cruz, 138 A.D.3d 1414, 1414-1415, 30 N.Y.S.3d 427 [4th Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016]; see also People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]). This case does not fall within the rare exception to the preservation requirement (see generally Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). Further, defendant's valid waiver of the right to appeal precludes our review of his challenge to the severity of his sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).