PEOPLE v. EATON (2005)

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Rosato, J.), rendered December 5, 2002, convicting him of incest, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the court failed to conduct an adequate plea allocution is unpreserved for appellate review, since the defendant did not move either to withdraw the plea of guilty or to vacate the judgment of conviction, and the “rare case” exception to the preservation requirement does not apply (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Claudio, 64 N.Y.2d 858, 487 N.Y.S.2d 318, 476 N.E.2d 644;  People v. Gaines, 11 A.D.3d 478, 782 N.Y.S.2d 378;  People v. Martin, 7 A.D.3d 640, 776 N.Y.S.2d 499).   In any event, the record of the plea proceeding demonstrates that the defendant ultimately unequivocally admitted committing the acts constituting the crime of incest (see People v. Washington, 254 A.D.2d 179, 682 N.Y.S.2d 1;  People v. Rivera, 191 A.D.2d 209, 594 N.Y.S.2d 209).

 Furthermore, the record does not support the defendant's contention that he denied his guilt at sentencing.   In any event, these purported post-plea statements of innocence do not warrant vacating his plea (see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329;  People v. Hronopoulos, 192 A.D.2d 720, 598 N.Y.S.2d 733;  People v. James, 192 A.D.2d 555, 596 N.Y.S.2d 100).

 The defendant's waiver of his right to appeal precludes review of his contention that he was denied the effective assistance of counsel except to the extent that it affected the voluntariness of his plea (see People v. Demosthene, 2 A.D.3d 874, 769 N.Y.S.2d 746;  People v. Herring, 274 A.D.2d 525, 526, 712 N.Y.S.2d 388;  People v. Holmes, 268 A.D.2d 597, 702 N.Y.S.2d 840).   We find that the plea was knowingly, voluntarily, and intelligently made (see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170).