PEOPLE v. ADAMS

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

The PEOPLE of the State of New York, Respondent, v. Ronald ADAMS, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SMITH, J.P., CENTRA, LUNN, FAHEY, AND GREEN, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted forgery in the second degree (Penal Law §§ 110.00, 170.10[2] ).   We agree with defendant that he did not validly waive his right to appeal.   The record establishes that Supreme Court (John J. Brunetti, A.J.) failed to “ ‘engage[ ] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Brown, 296 A.D.2d 860, 745 N.Y.S.2d 368, lv. denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919;  see People v. Matthews, 24 A.D.3d 1306, 805 N.Y.S.2d 907, lv. denied 6 N.Y.3d 850, 816 N.Y.S.2d 756, 849 N.E.2d 979).   In any event, although the contention of defendant that his plea was not knowingly, voluntarily, and intelligently entered would survive even a valid waiver of the right to appeal (see People v. Elardo, 52 A.D.3d 1272, 858 N.Y.S.2d 633, lv. denied 11 N.Y.3d 787, 788, 866 N.Y.S.2d 614, 896 N.E.2d 100;  People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 26, 700 N.E.2d 564), we conclude that the contention of defendant is actually a challenge to the factual sufficiency of the plea allocution because he contends therein that he failed to recite the underlying facts of the crime (see People v. Williams, 35 A.D.3d 1273, 825 N.Y.S.2d 862, lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465).   Defendant failed to preserve that contention for our review (see id.), and this case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: