PEOPLE v. MARTIN

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

The PEOPLE of the State of New York, Respondent, v. Matthew D. MARTIN, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, LUNN, PERADOTTO, AND GREEN, JJ. Tully, Rinckey & Associates, PLLC, Albany (Mathew B. Tully of Counsel), for Defendant-Appellant. Susan H. Lindenmuth, District Attorney, Penn Yan (Jason L. Cook of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of stolen property in the third degree (Penal Law § 165.50).   Although the contention of defendant that his plea was not knowingly, voluntarily and intelligently entered survives his waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Bland, 27 A.D.3d 1052, 810 N.Y.S.2d 718, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674), defendant failed to preserve that contention for our review by moving to withdraw his plea or to vacate the judgment of conviction (see People v. Aguayo, 37 A.D.3d 1081, 829 N.Y.S.2d 350, lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660;   Bland, 27 A.D.3d 1052, 810 N.Y.S.2d 718).   Defendant further contends that he did not move to withdraw his plea based on the statement of County Court that, if he were to do so, the court would have to consider the fact that defendant pleaded guilty while under oath, “which then raises a possible perjury charge․” We reject that contention.   The record establishes that defendant's decision not to move to withdraw the plea was made upon the advice of defense counsel well before the court made that statement.   In any event, we conclude that the plea was knowingly, voluntarily and intelligently entered.   Finally, defendant contends that the observation of the police that the vehicle identification number had been removed from the camper in which he was residing constituted a warrantless search of that camper and thus that the court erred in refusing to suppress the evidence.   The valid waiver by defendant of the right to appeal encompasses that contention, however, and we therefore do not address it (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Hernandez, 21 A.D.3d 1214, 801 N.Y.S.2d 167, lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 585, 842 N.E.2d 483;  People v. Lopez, 8 A.D.3d 819, 820, 778 N.Y.S.2d 572, lv. denied 3 N.Y.3d 708, 785 N.Y.S.2d 36, 818 N.E.2d 678).

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

MEMORANDUM: