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The People of the State of New York, Respondent v. Edwin Montanez

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


November 10, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
EDWIN MONTANEZ, DEFENDANT-APPELLANT.

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered January 28, 2008.

People v Montanez

Decided on November 10, 2011

Appellate Division, Fourth 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.

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

The judgment convicted defendant, upon his plea of guilty, of rape in the third degree.

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 rape in the third degree (Penal Law § 130.25 [2]). Contrary to defendant's contention, we conclude that he validly waived his right to appeal (see People v Lopez, 6 NY3d 248, 256). Although the further contention of defendant that his plea was not knowingly, intelligently or voluntarily entered survives his valid waiver of the right to appeal, "defendant failed to preserve that contention for our review because . . . he failed to move to withdraw the plea or to vacate the judgment of conviction" (People v Connolly, 70 AD3d 1510, 1511, lv denied 14 NY3d 886). In any event, defendant's contention lacks merit. During the plea colloquy, defendant denied having any mental or physical impairments, denied that his plea was induced by threats or promises and admitted that he engaged in conduct that constituted rape in the third degree pursuant to Penal Law § 130.25 (2). Based on the record of the plea colloquy, we conclude that defendant understood the nature and consequences of the plea and that it was knowingly, intelligently, and voluntarily entered (see People v White, 85 AD3d 1493; People v Watkins, 77 AD3d 1403, 1403-1404, lv denied 15 NY3d 956; Connolly, 70 AD3d at 1511).

Entered: November 10, 2011

Patricia L. Morgan Clerk of the Court

20111110

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