Muldoon, Getz & Reston, Rochester (Gary Muldoon of Counsel), for Defendant–Appellant.
Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, DeJOSEPH, CURRAN, and SCUDDER, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of perjury in the first degree (Penal Law § 210.15 ). We reject defendant's contention that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). “County Court expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea” (People v. Thompson, 83 A.D.3d 1535, 1535, 921 N.Y.S.2d 577 [internal quotation marks omitted]; see People v. Villar, 115 A.D.3d 1361, 1361, 982 N.Y.S.2d 804, lv. denied 23 N.Y.3d 1044, 993 N.Y.S.2d 257, 17 N.E.3d 512 ). Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal (see People v. Oberdorf, 136 A.D.3d 1291, 1292, 24 N.Y.S.3d 545 ; People v.
Rosado, 70 A.D.3d 1315, 1316, 894 N.Y.S.2d 703, lv. denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 ). In any event, defendant failed to preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see Oberdorf, 136 A.D.3d at 1292, 24 N.Y.S.3d 545; People v. Wackwitz, 93 A.D.3d 1220, 1221, 940 N.Y.S.2d 425, lv. denied 19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.