People v. Hernandez

259 A.D.2d 1030, 688 N.Y.S.2d 315, 1999 N.Y. App. Div. LEXIS 3434

Opinion

Judgment unanimously affirmed. Memorandum: The waiver by defendant of the right to appeal encompasses his contentions that County Court erred in summarily denying his suppression motion (see, People v Seaberg, 74 NY2d 1, 7; People v Williams, 36 NY2d 829, cert denied 423 US 873) and that the sentence is unduly harsh and severe (see, People v Hidalgo, 91 NY2d 733, 737; People v Allen, 82 NY2d 761, 763). The contention that the plea was not knowingly, voluntarily and intelligently made survives the waiver of the right to appeal (see, People v Seaberg, supra, at 10; People v Francabandera, 33 NY2d 429, 434, n 2). By failing to move to withdraw the plea or to vacate the judgment of conviction, however, defendant failed to preserve that contention for our review (see, People v Toxey, 86 NY2d 725, 726, rearg denied 86 NY2d 839; People v Lopez, 71 NY2d 662, 665), and this case “does not qualify for the narrow, ‘rare case’ exception to the preservation doctrine” (People v Toxey, supra, at 726; see, People v Jackson, 258 AD2d 920; People v Allen, 258 AD2d 878). (Appeal from Judgment of Onondaga County Court, Burke, J. — Criminal Sale Controlled Substance, 3rd Degree.) Present — Green, J. P., Pine, Wisner, Scudder and Callahan, JJ.