Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Thomas R. OSWOLD, Defendant–Appellant.
Andrea J. Schoeneman, Conflict Defender, Canandaigua (Robert Tucker of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.
Andrea J. Schoeneman, Conflict Defender, Canandaigua (Robert Tucker of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ) and perjury in the first degree (§ 210.15). Contrary to defendant's contention, we conclude that he knowingly, voluntarily and intelligently waived his right to appeal (see generally People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ), and thus defendant's challenge to the factual sufficiency of the plea allocution is encompassed by his waiver of the right to appeal (see People v. McCrea, 140 A.D.3d 1655, 1655, 32 N.Y.S.3d 778, lv. denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 ). Moreover, defendant failed to preserve that challenge for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, "the plea allocution as a whole establishes that ‘defendant understood the charges and made an intelligent decision to enter a plea’ " (People v. Keitz, 99 A.D.3d 1254, 1255, 951 N.Y.S.2d 454, lv. denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330, reconsideration denied 21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893, quoting People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ). Defendant's challenge to the legal sufficiency of the evidence before the grand jury with respect to the perjury count does not survive the guilty plea (see People v. Gillett, 105 A.D.3d 1444, 1445, 963 N.Y.S.2d 906 ; People v. Lawrence, 273 A.D.2d 805, 805, 710 N.Y.S.2d 262, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370 ), nor does his challenge to the sufficiency of the factual allegations in the indictment with respect to that count (see People v. Guerrero, 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 ; Lawrence, 273 A.D.2d at 805, 710 N.Y.S.2d 262 ; People v. Holt, 173 A.D.2d 644, 645, 571 N.Y.S.2d 1001 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.