People v. Walker — 111 A.D.3d 1423

Majority

p. 1423

The People of the State of New York, Respondent, v Ramone Walker, Appellant.

[974 NYS2d 869]

— Appeal from a

p. 1424

judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered January 4, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]). The waiver by defendant of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution (see People v Thousand, 96 AD3d 1439 , 1439-1440 [2012], lv denied 19 NY3d 1002 [2012]) and, moreover, that challenge is unpreserved for our review inasmuch as defendant did not move to withdraw the plea or vacate the judgment of conviction (see People v Lopez, 71 NY2d 662 , 665 [1988]; People v Nelson, 105 AD3d 1389 , 1390 [2013], lv denied 21 NY3d 1044 [2013]). The waiver of the right to appeal also encompasses defendant’s contention that the sentence is unduly harsh and severe (see generally People v Maracle, 19 NY3d 925 , 928 [2012]; People v Hidalgo, 91 NY2d 733 , 737 [1998]). Present — Smith, J.P., Centra, Fahey, Garni and Whalen, JJ.

Cases cited

People v. Lopez 71 NY2d 662 N.Y. 1988-06-02 at 665 p. 1424
People v. Nelson 105 AD3d 1389 N.Y. App. Div. 2013-04-26 at 1390 p. 1424
People v. Maracle 19 NY3d 925 N.Y. 2012-06-27 at 928 p. 1424
People v. Hidalgo 91 NY2d 733 N.Y. 1998-06-04 at 737 p. 1424