Opinion
946 KA 20-01640
11-19-2021
The PEOPLE of the State of New York, Respondent, v. David J. MORSEMAN, Defendant-Appellant.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of grand larceny in the fourth degree ( Penal Law § 155.30 [4] ), defendant contends that his plea was involuntarily entered for a variety of reasons, and that his waiver of the right to appeal is invalid. Inasmuch as a challenge to the voluntariness of a plea survives even a valid waiver of the right to appeal (see People v. Seeman , 188 A.D.3d 1670, 1670, 132 N.Y.S.3d 382 [4th Dept. 2020] ), there is no reason for us to address the validity of the waiver in this case. Because defendant did not move to withdraw his plea or to vacate the judgment of conviction, however, his challenge to the voluntariness of his plea is unpreserved for our review (see People v. Shanley , 189 A.D.3d 2108, 2108, 134 N.Y.S.3d 856 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 117, 167 N.E.3d 1252 [2021] ), and this case does not fall within the narrow exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666-667, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988). In any event, we conclude that none of defendant's specific contentions concerning the voluntariness of his plea has merit.