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The People, etc., respondent, v. Warren A. Ovalle, appellant. (2013)

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Warren A. Ovalle, appellant.

2010–01387 (Ind.No. 3844/07)

Decided: December 26, 2013

WILLIAM F. MASTRO, J.P. REINALDO E. RIVERA JOHN M. LEVENTHAL CHERYL E. CHAMBERS, JJ. Mark A. Diamond, New York, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), for respondent.

Submitted—November 14, 2013


Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered January 7, 2010, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 NY3d 248, 256–257).   The defendant's valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of the plea allocution (see People v. Knapp, 108 AD3d 641, 642;  People v. Devodier, 102 AD3d 884;  People v. Crews, 92 AD3d 795;  People v. Hardee, 84 AD3d 835).

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v. Clarke, 93 N.Y.2d 904, 906;  People v. Devodier, 102 AD3d 884;  People v. Andrea, 98 AD3d 627).   Furthermore, the “rare case” exception to the preservation rule does not apply here, since the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (People v. Lopez, 71 N.Y.2d 662, 666).



Aprilanne Agostino

Clerk of the Court

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