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

270
KA 10-00732
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MARK A. WARE, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF
COUNSEL), 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 March 2, 2009. The judgment convicted defendant,
upon his plea of guilty, of manslaughter in the first degree and
assault 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 manslaughter in the first degree (Penal Law § 125.20
[1]) and assault in the second degree (§ 120.05 [2]), defendant
contends that his waiver of the right to appeal is invalid; his plea
was not knowingly and voluntarily entered; and his sentence is unduly
harsh and severe. Although we conclude that defendant’s waiver of the
right to appeal was valid (see People v Lopez, 6 NY3d 248, 256; People
v Flagg, 107 AD3d 1613, 1614), his contention concerning the knowing
and voluntary nature of the plea survives the valid waiver (see People
v Robinson, 112 AD3d 1349, 1349). Nevertheless, the record does not
establish that defendant timely moved to withdraw his plea or to
vacate the judgment of conviction, and thus his contention is not
preserved for our review (see id.). In any event, his contention is
without merit (see People v Cox, 111 AD3d 1310, 1310). Defendant’s
valid waiver of the right to appeal “forecloses any challenge by
defendant to the severity of the sentence” (People v Pulley, 107 AD3d
1560, 1561, lv denied 21 NY3d 1076).




Entered:    March 21, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
