        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

365
KA 10-02123
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES RICHARDS, JR., DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered September 29, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second degree.

     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 attempted burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), defendant contends that his waiver of the
right to appeal is invalid. That contention lacks merit. County
Court specifically advised defendant that the waiver of the right to
appeal was not automatic based upon the plea (cf. People v Moyett, 7
NY3d 892), and the court asked defendant whether he had discussed the
waiver of his right to appeal with his attorney and in fact provided
defendant with a further opportunity to speak to his attorney
concerning the waiver. Under the circumstances, the court did not
“ ‘conflate’ ” the waiver of the right to appeal with those rights
automatically forfeited by the plea (People v Porter, 55 AD3d 1313, lv
denied 11 NY3d 899). Defendant’s waiver of the right to appeal
forecloses his contention regarding the severity of the sentence (see
People v Lopez, 6 NY3d 248, 255). Finally, defendant failed to move
to withdraw his plea or to vacate the judgment of conviction and thus
has failed to preserve for our review his challenge to the factual
sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662,
665). We note in any event that no factual colloquy was required
inasmuch as defendant pleaded guilty to a crime lesser than that
charged in the indictment (see People v Zimmerman, 219 AD2d 848, lv
                            -2-                  365
                                           KA 10-02123

denied 88 NY2d 856).




Entered:   March 16, 2012         Frances E. Cafarell
                                  Clerk of the Court
