People v. Lopez

199 A.D.3d 704

153 N.Y.S.3d 877 (Mem)

The PEOPLE, etc., respondent,

v.Francisco LOPEZ, appellant.

2019–11248

Ind. No. 1154/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 12, 2021

November 3, 2021

Laurette D. Mulry, Riverhead, N.Y. (Lisa Marcoccia of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred Croce of counsel), for respondent.

HECTOR D. LASALLE, P.J., LEONARD B. AUSTIN, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy Mazzei, J.), rendered February 19, 2019, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, his waiver of the right to appeal was knowing, voluntary, and intelligent (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Scott, 165 A.D.3d 1295, 1295, 84 N.Y.S.3d 785 ; People v. Melvin, 165 A.D.3d 1291, 84 N.Y.S.3d 813 ). The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Melvin, 165 A.D.3d at 1291, 84 N.Y.S.3d 813 ; People v. Palladino, 140 A.D.3d 1194, 1195, 33 N.Y.S.3d 469 ; People v. Magnotta, 137 A.D.3d 1303, 1303, 27 N.Y.S.3d 403 ).

The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Scott, 165 A.D.3d at 1296, 84 N.Y.S.3d 785 ; People v. Melvin, 165 A.D.3d at 1291, 84 N.Y.S.3d 813 ; People v. Magnotta, 137 A.D.3d at 1303, 27 N.Y.S.3d 403 ; People v. Fontanet, 126 A.D.3d 723, 723, 2 N.Y.S.3d 371 ). However, the defendant's contention is unpreserved for appellate review because he did not move to withdraw his plea or otherwise raise this issue before the County Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Melvin, 165 A.D.3d at 1291, 84 N.Y.S.3d 813 ; People v. Pollidore, 123 A.D.3d 1058, 1058, 997 N.Y.S.2d 752 ). In any event, this contention is without merit (see People v. Maldonado, 194 A.D.3d 1076, 1076, 144 N.Y.S.3d 613 ; People v. Gutierrez, 194 A.D.3d 839, 839, 143 N.Y.S.3d 897 ).

LASALLE, P.J., AUSTIN, WOOTEN and ZAYAS, JJ., concur.