Opinion
1376 KA 16–01977
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Theodore E. MYERS, Defendant–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of attempted manslaughter in the first degree ( Penal Law §§ 110.00, 125.20[1] ). Defendant's valid waiver of the right to appeal, which included a waiver of the right to challenge both the "conviction and sentence," encompasses his contention that the sentence is unduly harsh and severe (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). Defendant failed to preserve for our review his challenge to the plea on the ground that it was not knowingly, voluntarily, and intelligently entered, and we reject his contention that this case falls 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 [1988]. Contrary to defendant's contention, because he was indicted on a count of attempted murder in the first degree ( §§ 110.00, 125.27[1][a][vi] ), which is a class A–I felony (see § 110.05[1] ), his plea was required to include a plea of guilty to at least a class C violent felony offense (see CPL 220.10[5][d][i] ).