PEOPLE v. BURNEY

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 escape in the second degree (Penal Law § 205.10). Contrary to the contention of defendant, the record of the plea proceeding establishes that he validly waived his right to appeal ( see People v Flowers, 31 AD3d 1212, lv denied 7 NY3d 848), and that waiver encompasses his challenge to the severity of the sentence ( see People v Lococo, 92 NY2d 825, 827). The further contention of defendant that his plea was not knowing, voluntary or intelligent survives his waiver of the right to appeal ( see People v Bland, 27 AD3d 1052, 1052-1053, lv denied 6 NY3d 892), 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 Aguayo, 37 AD3d 1081; Flowers, 31 AD3d 1212). This case does not fall within the rare exception to the preservation requirement set forth in People v Lopez ( 71 NY2d 662, 666).