People v. Smith , 146 A.D.3d 904 ( 2017 )

People v Smith (2017 NY Slip Op 00326)

People v Smith

2017 NY Slip Op 00326

Decided on January 18, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 18, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
SHERI S. ROMAN
VALERIE BRATHWAITE NELSON, JJ.

2015-11663
(Ind. No. 14-00107)

[*1]The People of the State of New York, respondent,

v

Christopher Smith, appellant.

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.

DECISION & ORDER

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 NY3d 337). 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 AD3d 1007; People v Pinero, 138 AD3d 763, 764; People v Devodier, 102 AD3d 884).

The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v Magnotta, 137 AD3d 1303). 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 NY2d 904, 906; People v Morgado, 144 AD3d 709, 710). In any event, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v Seeber, 4 NY3d 780, 781; People v Fiumefreddo, 82 NY2d 536, 543).

RIVERA, J.P., CHAMBERS, ROMAN and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court