People v. Smith
| Decision Date | 18 January 2017 |
| Citation | 146 A.D.3d 904,2017 N.Y. Slip Op. 00326,44 N.Y.S.3d 771 (Mem) |
| Parties | The PEOPLE, etc., respondent, v. Christopher SMITH, appellant. |
| Court | New York Supreme Court — Appellate Division |
Mark Diamond, New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Capeci, J.), rendered September 23, 2015, convicting him of criminal possession of a forged instrument 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. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge to the factual sufficiency of his plea allocution (see People v. Thompson, 143 A.D.3d 1007, 39 N.Y.S.3d 800 ; People v. Pinero, 138 A.D.3d 763, 764, 27 N.Y.S.3d 883 ; People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220 ).
The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ). However, the defendant failed to preserve this contention for appellate review, since he did not move to vacate his plea or otherwise raise this issue before the County Court (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Morgado, 144 A.D.3d 709, 710, 39 N.Y.S.3d 839 ). In any event, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (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 ).
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