Opinion
425 KA 21-01370
06-09-2023
The PEOPLE of the State of New York, Respondent, v. Faron SZYMANSKI, Defendant-Appellant.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND GREENWOOD, 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 his plea of guilty of two counts of course of sexual conduct against a child in the second degree ( Penal Law § 130.80 [1] [b] ). Contrary to defendant's contention, the plea colloquy establishes that he knowingly, voluntarily, and intelligently waived the right to appeal (see People v. Mess , 186 A.D.3d 1069, 1069, 127 N.Y.S.3d 360 [4th Dept. 2020] ; see generally People v. Thomas , 34 N.Y.3d 545, 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ). Although defendant's challenge to the voluntariness of his plea survives his valid waiver of the right to appeal (see Thomas , 34 N.Y.3d at 558, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Seaberg , 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), by failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve that challenge for our review (see People v. Garcia-Cruz , 138 A.D.3d 1414, 1414-1415, 30 N.Y.S.3d 427 [4th Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; see also People v. Lopez , 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). This case does not fall within the rare exception to the preservation requirement (see generally Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Further, defendant's valid waiver of the right to appeal precludes our review of his challenge to the severity of his sentence (see People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).