PEOPLE v. HERNANDEZ

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Kyrus HERNANDEZ, Defendant-Appellant.

Decided: March 31, 1999

PRESENT:  GREEN, J.P., PINE, WISNER, SCUDDER and CALLAHAN, JJ. Judith Cara Malkin, of counsel, Frank H. HiscockLegal Aid Society, Syracuse, for defendant-appellant. James P. Maxwell, of counsel, Onondaga County District Attorney's Office, Syracuse, for plaintiff-respondent. William John Fitzpatrick, Syracuse.

 The waiver by defendant of the right to appeal encompasses his contentions that County Court erred in summarily denying his suppression motion (see, People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684,cert. denied 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104) and that the sentence is unduly harsh and severe (see, People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170).   The contention that the plea was not knowingly, voluntarily and intelligently made survives the waiver of the right to appeal (see, People v. Seaberg, supra, at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Francabandera, 33 N.Y.2d 429, 434, n. 2, 354 N.Y.S.2d 609, 310 N.E.2d 292).   By failing to move to withdraw the plea or to vacate the judgment of conviction, however, defendant failed to preserve that contention for our review (see, People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160, rearg. denied 86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225;  People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5), and this case “does not qualify for the narrow, ‘rare case’ exception to the preservation doctrine” (People v. Toxey, supra, at 726, 631 N.Y.S.2d 119, 655 N.E.2d 160;  see, People v. Jackson [Adrian], 258 A.D.2d 920, 687 N.Y.S.2d 919;  People v. Allen, 258 A.D.2d 878, 687 N.Y.S.2d 913).

Judgment unanimously affirmed.

MEMORANDUM: