PEOPLE v. LUSTER (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered June 20, 2005, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his contention that his plea of guilty and waiver of the right to appeal were not intelligently, knowingly, and voluntarily made (CPL 470.05[2];  see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222;  People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Mitchell, 22 A.D.3d 769, 802 N.Y.S.2d 372;  People v. Hull, 300 A.D.2d 411, 751 N.Y.S.2d 747).   While there is an exception to this preservation requirement when a defendant's recitation of the facts negates an essential element of the crime, or casts significant doubt on his guilt (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5), this exception does not apply here because the defendant's factual recitation did not negate an essential element of rape in the first degree or cast significant doubt on his guilt.

 In any event, the defendant's claim that his plea and waiver were not intelligently, knowingly, and voluntarily made because the court failed to specifically enumerate all of the rights to which he was entitled is without merit (see People v. Watson, 19 A.D.3d 518, 798 N.Y.S.2d 471).   The Court of Appeals has consistently held that there is no “uniform mandatory catechism of pleading defendants” (People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709;  see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797;  People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170).  “Moreover, the defendant acknowledged that he discussed the plea and waiver with his attorney, executed the waiver in open court, and indicated his understanding of the nature and consequences of the rights that he waived” (People v. Silent, 37 A.D.3d 625, 625, 831 N.Y.S.2d 194;  see People v. Reynolds, 27 A.D.3d 668, 669, 811 N.Y.S.2d 128;  People v. Torres, 24 A.D.3d 692, 808 N.Y.S.2d 380).

 Further, the defendant's valid waiver of his right to appeal precludes review of his challenge to the sentence as excessive (see People v. Lopez, 6 N.Y.3d 248, 264, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).