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

634
KA 13-00676
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

PAUL E. BUCK, JR., DEFENDANT-APPELLANT.


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

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered March 21, 2013. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree.

     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 assault in the second degree (Penal Law §
120.05 [2]). The waiver by defendant of the right to appeal
encompasses his challenge to the factual sufficiency of the plea
allocution (see People v Walker, 111 AD3d 1423, 1424, lv denied 22
NY3d 1142) and, in any event, that challenge is unpreserved for our
review inasmuch as defendant did not move to withdraw the plea or to
vacate the judgment of conviction (see People v Lopez, 71 NY2d 662,
665; Walker, 111 AD3d at 1424). The valid waiver by defendant of the
right to appeal encompasses his challenge to the severity of the
sentence (see People v Lopez, 6 NY3d 248, 255-256).




Entered:   June 20, 2014                           Frances E. Cafarell
                                                   Clerk of the Court
