                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 29, 2015                   105564
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THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

KEVIN DEVAULT,
                    Appellant.
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Calendar Date:   December 16, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

                             __________


     Gail B. Rubenfeld, Monticello, for appellant.

      James R. Farrell, District Attorney, Monticello (Katy
Schlichtman of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered May 22, 2012, convicting defendant
upon his plea of guilty of the crimes of course of sexual conduct
in the first degree, course of sexual conduct in the second
degree, rape in the second degree and incest in the second
degree.

      In satisfaction of a 17-count indictment, defendant pleaded
guilty to course of sexual conduct in the first degree, course of
sexual conduct in the second degree, rape in the second degree
and incest in the second degree. Defendant also executed a
written waiver of his right to appeal. Following the denial of
defendant's motion to vacate the plea, County Court sentenced him
to an aggregate term of 25 years in prison, to be followed by 20
                              -2-                  105564

years of postrelease supervision.   Defendant now appeals.

      We affirm. Initially, we reject defendant's argument that
his waiver of the right to appeal is invalid. Any ambiguity in
County Court's discussion of the waiver was resolved by the
written waiver and defendant's oral confirmation that he both had
signed the written waiver in the presence of counsel and was
waiving his right to appeal voluntarily (see People v Ramos, 7
NY3d 737, 738 [2006]; People v Fling, 112 AD3d 1001, 1002 [2013],
lv denied 23 NY3d 1020 [2014]; see also People v Bradshaw, 18
NY3d 257, 266-267 [2011]). Defendant's sole remaining challenge
on this appeal is that his plea must be deemed involuntary
inasmuch as his recitation of the facts did not establish the
elements of the crimes to which he pleaded guilty. This argument
amounts to a challenge to the facial sufficiency of his plea and
is barred by defendant's valid waiver of the right to appeal and
his failure to preserve the issue by raising it in his motion to
withdraw his plea (see People v Long, 117 AD3d 1326, 1326-1327
[2014], lv denied 24 NY3d 1003 [2014]; People v Mydosh, 117 AD3d
1195, 1196 [2014], lv denied 24 NY3d 963 [2014]). Moreover, this
is not the "rare case" that comes "within the narrow exception to
the preservation requirement" inasmuch as defendant's factual
recitation did not actually negate an essential element of the
crime to which he pleaded (People v Worden, 22 NY3d 982, 985
[2013] [internal quotation marks and citation omitted]; see
People v Mydosh, 117 AD3d at 1196; People v Teele, 92 AD3d 972,
972 [2012]).

     Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur.


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
