Opinion
2012-02-17
The PEOPLE of the State of New York, Respondent, v. Carl GOOSSENS, Defendant–Appellant. (Appeal No. 2.)
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered January 9, 2007. The judgment convicted defendant, upon his plea of guilty, of rape in the third degree.John E. Tyo, Shortsville, for defendant-appellant. Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of Counsel), for respondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered January 9, 2007. The judgment convicted defendant, upon his plea of guilty, of rape in the third degree.John E. Tyo, Shortsville, for defendant-appellant. Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the third degree (Penal Law § 130.25[2] ). We reject defendant's contention that his waiver of the right to appeal was invalid ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Although defendant's further contention that his plea was not knowingly, voluntarily and intelligently entered survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review ( see People v. Davis, 45 A.D.3d 1357, 844 N.Y.S.2d 739, lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879; People v. Jones, 42 A.D.3d 968, 840 N.Y.S.2d 860). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5, “inasmuch as nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea” ( People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623; see Jones, 42 A.D.3d 968, 840 N.Y.S.2d 860). Defendant's valid waiver of the right to appeal encompasses his further contention that County Court failed to afford him sufficient time to retain a new attorney ( see People v. La Bar, 16 A.D.3d 1084, 791 N.Y.S.2d 233, lv. denied 5 N.Y.3d 764, 801 N.Y.S.2d 259, 834 N.E.2d 1269; People v. Morgan, 275 A.D.2d 970, 715 N.Y.S.2d 190, lv. denied 96 N.Y.2d 761, 725 N.Y.S.2d 288, 748 N.E.2d 1084) and, in any event, defendant failed to preserve that contention for our review ( see CPL 470.05[2] ). Finally, the challenge by defendant to the court's suppression ruling is also encompassed by his valid waiver of the right to appeal ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754; People v. Bell, 89 A.D.3d 1518, 932 N.Y.S.2d 745).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.