September 27, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ADAM THEALL, DEFENDANT-APPELLANT.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered November 18, 2010. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25 ), defendant contends, inter alia, that his waiver of the right to appeal is invalid and that his plea was not knowingly, voluntarily or intelligently entered because the factual allocution negated his intent to kill, which is an essential element of the crime to which he pleaded guilty. It is well settled that a contention that a guilty plea is not knowing, voluntary and intelligent survives a valid waiver of the right to appeal (see People v Cloyd, 78 A.D.3d 1669, 1670, lv denied 16 N.Y.3d 857; People v Trinidad, 23 A.D.3d 1060, 1061, lv denied 6 N.Y.3d 760; see generally People v Seaberg, 74 N.Y.2d 1, 10). Defendant, however, "failed to preserve that contention for our review by moving to withdraw the plea or to vacate the judgment of conviction" (Trinidad, 23 A.D.3d at 1061; see Cloyd, 78 A.D.3d at 1670). "Contrary to defendant's contention, this case does not fall within the rare exception to the preservation rule" (Trinidad, 23 A.D.3d at 1061; see generally People v Lopez, 71 N.Y.2d 662, 666). "Although the initial statements of defendant during the factual allocution may have negated the essential element of his intent to cause death, his further statements removed any doubt regarding that intent" (Trinidad, 23 A.D.3d at 1061; see Cloyd, 78 A.D.3d at 1670). In any event, County Court "conducted the requisite further inquiry to ensure that defendant understood the nature of the charge and that the plea was intelligently entered" (People v Glasper, 46 A.D.3d 1401, 1402, lv denied 10 N.Y.3d 863).
Even assuming, arguendo, that the waiver of the right to appeal is invalid (see People v Keiser, 100 A.D.3d 927, 928, lv denied 20 N.Y.3d 1062; see also People v Bradshaw, 76 A.D.3d 566, 569, affd 18 N.Y.3d 257), we would nevertheless reject defendant's contention that the sentence is unduly harsh or severe.