People v. Baker

49 A.D.3d 1293, 852 N.Y.2d 867

Opinion

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]). The contention of defendant that County Court erred in denying his motion to dismiss the indictment does not survive his valid waiver of the right to appeal (see People v Castillo, 208 AD2d 944 [1994]), nor in any event does it survive his guilty plea (see People v Porter, 300 AD2d 698, 699 [2002], lv denied 100 NY2d 541 [2003]). The further contention of defendant that his plea was not knowing, voluntary and intelligent survives his waiver of the right to appeal, but defendant failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction (see People v Davis, 45 AD3d 1357 [2007], lv denied 9 NY3d 1005 [2007]). Present— Scudder, P.J., Centra, Lunn, Fahey and Green, JJ.