People v. DeLeon

300 A.D.2d 1073, 751 N.Y.S.2d 910

Opinion

—Appeal from a judgment of Onondaga County Court (Aloi, J.), entered March 6, 2001, convicting defendant upon his plea of guilty of criminal possession of a controlled substance in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: The record establishes that defendant knowingly, intelligently and voluntarily waived his right to appeal as part of the plea agreement. Although “[t]he contention that defendant did not voluntarily, knowingly and intelligently enter his plea survives his waiver of the right to appeal, * * * defendant failed to preserve that contention for our review by moving to withdraw his plea or vacate the judgment of conviction” (People v DeJesus, 248 AD2d 1023, 1023, lv denied 92 NY2d 878; see People v Vallejo, 261 AD2d 962, lv denied 93 NY2d 1029), and the “plea allocution does not qualify for the narrow, ‘rare case’ exception to the preservation doctrine” (People v Toxey, 86 NY2d 725, 726, rearg denied 86 NY2d 839, quoting People v Lopez, 71 NY2d 662, 666). Present — Pine, J.P., Wisner, Scudder, Kehoe and Burns, JJ.