People v. Velez

303 A.D.2d 951, 755 N.Y.S.2d 906, 2003 N.Y. App. Div. LEXIS 2911

Opinion

—Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered September 7, 2001, convicting defendant upon his plea of guilty of sexual abuse in the first degree (two counts).

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

Memorandum: Contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was knowing, intelligent and voluntary (see People v Hidalgo, 91 NY2d 733, 736 [1998]; People v Burse, 295 AD2d 968, 969 [2002], lv denied 98 NY2d 709 [2002]), and that waiver encompasses his challenge to the severity of the sentence (see People v Lococo, 92 NY2d 825, 827 [1998]). The further contention of defendant that his plea was not knowingly, intelligently and voluntarily entered survives his waiver of the right to appeal, but defendant failed to preserve that contention for our review by moving to withdraw the plea or vacate the judgment of conviction (see People v Vallejo, 261 AD2d 962 [1999], lv denied 93 NY2d 1029 [1999]). Finally, we reject defendant’s contention that defense counsel’s advice to defendant to accept the plea offer before a Huntley hearing was held constitutes ineffective assistance of counsel (see People v Hanesworth, 302 AD2d 976 [2003]). Present — Green, J.P., Pine, Hurlbutt and Lawton, JJ.