Opinion
2019–11248 Ind. No. 1154/18
11-03-2021
The PEOPLE, etc., respondent, v. Francisco LOPEZ, appellant.
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.
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.