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People v. Peters

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 6, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID PETERS, DEFENDANT-APPELLANT.

Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered October 23, 2006. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree.

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.

PRESENT: SCUDDER, P.J., HURLBUTT, CENTRA, GREEN, AND GORSKI, JJ.

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 murder in the second degree (Penal Law § 125.25 [3]). Contrary to the contention of defendant, the record of the plea colloquy establishes that his waiver of the right to appeal was voluntary, knowing and intelligent (see People v Branch, 49 AD3d 1206, lv denied 10 NY3d 932). "The further contention of defendant that his plea was not voluntarily, knowingly, and intelligently entered is actually a challenge to the factual sufficiency of the plea allocution . . ., and that challenge is encompassed by the valid waiver of the right to appeal" (People v Wilson, 38 AD3d 1348, lv denied 9 NY3d 927; see Branch, 49 AD3d 1206). In any event, defendant failed to preserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665), and this case does not fall within the narrow exception to the preservation requirement (see id. at 666).

20090206

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