People v. Trinidad

23 A.D.3d 1060, 804 N.Y.S.2d 876, 2005 NY Slip Op 8439, 2005 N.Y. App. Div. LEXIS 12456

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered March 20, 2002. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25 [1]). The valid waiver by defendant of the right to appeal encompasses his contention that Supreme Court erred in refusing to suppress his statements to the police (see People v La Bar, 16 AD3d 1084, lv denied 5 NY3d 764 [2005]). The further contention of defendant that his plea was not knowingly, intelligently or voluntarily entered survives his waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]), but defendant failed to preserve that contention for our review by moving to withdraw the plea or to vacate the judgment of conviction (see People v Sherman, 8 AD3d 1026 [2004], lv denied 3 NY3d 681 [2004]). Contrary to defendant’s contention, this case does not fall within the rare exception to the preservation rule (cf. People v Rodriguez, 14 AD3d 719 [2005]). 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 (see People v Nestman, 239 AD2d 701 [1997], lv denied 90 NY2d 908 [1997]; see also People v Jennings, 8 AD3d 1067, 1068 [2004], lv denied 3 NY3d 676 [2004]). Present—Pigott, Jr., P.J., Green, Kehoe, Martoche and Pine, JJ.