People v Davon M. Griffin

People v Griffin 2005 NY Slip Op 10000 [24 AD3d 1316] December 22, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent, v Davon M. Griffin, Appellant.

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Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered August 11, 2003. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [1]). Contrary to the contention of defendant, his waiver of the right to appeal was voluntary, knowing and intelligent (see generally People v Moissett, 76 NY2d 909, 910-911 [1990]; People v Ray, 307 AD2d 754 [2003], lv denied 100 NY2d 624 [2003]). The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737 [1998]) and, in any event, that challenge lacks merit. Although the further contention of defendant that his plea was not voluntarily entered survives his waiver of the right to appeal, defendant failed to preserve that contention for our review by moving to withdraw the plea or to vacate the judgment of conviction (see People v McKay, 5 AD3d 1040 [2004], lv denied 2 NY3d 803 [2004]). This case does not fall within the narrow exception to the preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Smith and Lawton, JJ.