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People v. Busch

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


March 20, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES BUSCH, JR., DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered April 30, 2007. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first 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., SMITH, CENTRA, FAHEY, AND PINE, 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 manslaughter in the first degree (Penal Law § 125.20 [1]). To the extent that defendant challenges the factual sufficiency of his plea allocution, that challenge is encompassed by his valid waiver of the right to appeal (see People v Morgan, ___ AD3d ___ [Feb. 6, 2009]; People v Phillips, 56 AD3d 1163, 1164; People v Spikes, 28 AD3d 1101, 1102, lv denied 7 NY3d 818). Although the further contention of defendant that his plea was involuntary survives his waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10; People v Elardo, 52 AD3d 1272, lv denied 11 NY3d 787, 788), defendant failed to preserve that contention for our review (see People v Neal, 56 AD3d 1211; People v Collins, 45 AD3d 1472, lv denied 10 NY3d 861). This case does not fall within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662, 666; Neal, 56 AD3d 1211; People v Sharp, 56 AD3d 1230, lv denied 11 NY3d 900).

20090320

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