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

1415
KA 10-01059
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DEVON S. GARRY, ALSO KNOWN AS “D,”
DEFENDANT-APPELLANT.


DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment     of the Oneida County Court (Michael L.
Dwyer, J.), rendered May 5,     2009. The judgment convicted defendant,
upon his plea of guilty, of     attempted criminal possession of a
controlled substance in the     third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his guilty plea, of attempted criminal possession of a controlled
substance in the third degree (Penal Law §§ 110.00, 220.16 [1]). We
reject defendant’s contention that his waiver of his right to appeal
was invalid. The record of the plea colloquy and the written waiver
of the right to appeal establish that defendant was “adequately
apprised . . . that ‘the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty’ ” (People
v Kulyeshie, 71 AD3d 1478, 1478, lv denied 14 NY3d 889, quoting People
v Lopez, 6 NY3d 248, 256). Although defendant’s contention that his
plea was not voluntarily, knowingly, and intelligently entered
survives his valid waiver of the right to appeal, defendant failed to
preserve that contention for our review by moving to withdraw the plea
or to vacate the judgment of conviction (see People v Davis, 45 AD3d
1357, lv denied 9 NY3d 1005; People v Jones, 42 AD3d 968). Further,
contrary to defendant’s contention, this case does not fall within the
rare exception to the preservation requirement set forth in People v
Lopez (71 NY2d 662, 666), because nothing in the plea allocution calls
into question the voluntariness of the plea or casts “significant
doubt” upon his guilt (People v Lewandowski, 82 AD3d 1602, 1602; see
Lopez, 71 NY2d at 666; Jones, 42 AD3d 968).

Entered:    December 23, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
