People v Peterson

People v Peterson 2006 NY Slip Op 09784 [35 AD3d 1195] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent, v Javon Peterson, Appellant.

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Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered February 24, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second 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 criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]). Contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was made knowingly, intelligently and voluntarily (see People v Lopez, 6 NY3d 248, 256 [2006]). County Court thoroughly reviewed the consequences of the waiver with defendant, defendant expressed his understanding of those consequences and waived the right to appeal both orally and in writing. Furthermore, the plea bargain was reasonable. We reject defendant's contention that the waiver of the right to appeal is against public policy (see generally People v Muniz, 91 NY2d 570, 573-574 [1998]).

Although the contention of defendant that his plea was not knowingly, voluntarily or intelligently entered survives the waiver of the right to appeal (see People v Holifield, 34 AD3d 1316 [2006]; People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]), by failing to move to withdraw his plea or to vacate the judgment, defendant failed to preserve that contention for our review (see DeJesus, 248 AD2d at 1023). In any event, we conclude that defendant's contention is without merit (see generally People v Seeber, 4 NY3d 780, 780-781 [2005]). The contention of defendant that his factual colloquy was insufficient, thereby rendering his plea involuntary, is not supported by the record, which establishes that defendant admitted the underlying factual allegations of the crime and responded to questions regarding details of the crime. Present—Scudder, P.J., Martoche, Centra and Green, JJ.