People v. Korber

Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [3]) and rape in the first degree (§ 130.35 [1]). Contrary to defendant’s contention, he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea (see generally People v Lopez, 6 NY3d 248 , 256 [2006]). “County Court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v James, 71 AD3d 1465 , 1465 [2010] [internal quotation marks omitted]), and the record establishes that he “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Lopez, 6 NY3d at 256 ).

Defendant’s further contention “that his plea was not knowing, intelligent and voluntary ‘because he did not recite the underlying facts of the crime [s] but simply replied to [the c]ourt’s questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution,’ which is encompassed by the valid waiver of the right to appeal” (People v Simcoe, 74 AD3d 1858 , 1859 [2010], lv denied 15 NY3d 778 [2010]; see People v Brown, 66 AD3d 1385 [2009], lv denied 14 NY3d 839 [2010]). Moreover, defendant failed to preserve that contention for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v Jamison, 71 AD3d 1435 [2010], lv denied 14 NY3d 888 [2010]; People v Lacey, 49 AD3d 1259 , 1259-1260 [2008], lv denied 10 NY3d 936 [2008]).

Defendant’s constitutional challenge to the persistent felony

Finally, defendant’s challenge to the severity of the sentence is encompassed by the valid waiver of the right to appeal (see People v Hidalgo, 91 NY2d 733 , 737 [1998]). Present — Scudder, EJ., Garni, Lindley, Sconiers and Green, JJ.