MONTANEZ, EDWIN, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1086
KA 10-01394
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
EDWIN MONTANEZ, DEFENDANT-APPELLANT.
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered January 28, 2008. The judgment convicted
defendant, upon his plea of guilty, of rape in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of rape in the third degree (Penal Law §
130.25 [2]). Contrary to defendant’s contention, we conclude that he
validly waived his right to appeal (see People v Lopez, 6 NY3d 248,
256). Although the further contention of defendant that his plea was
not knowingly, intelligently or voluntarily entered survives his valid
waiver of the right to appeal, “defendant failed to preserve that
contention for our review because . . . he failed to move to withdraw
the plea or to vacate the judgment of conviction” (People v Connolly,
70 AD3d 1510, 1511, lv denied 14 NY3d 886). In any event, defendant’s
contention lacks merit. During the plea colloquy, defendant denied
having any mental or physical impairments, denied that his plea was
induced by threats or promises and admitted that he engaged in conduct
that constituted rape in the third degree pursuant to Penal Law §
130.25 (2). Based on the record of the plea colloquy, we conclude
that defendant understood the nature and consequences of the plea and
that it was knowingly, intelligently, and voluntarily entered (see
People v White, 85 AD3d 1493; People v Watkins, 77 AD3d 1403, 1403-
1404, lv denied 15 NY3d 956; Connolly, 70 AD3d at 1511).
Entered: November 10, 2011 Patricia L. Morgan
Clerk of the Court