           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
180
KA 09-00724
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

MICHAEL A. TABB, 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 (Richard C.
Kloch, Sr., A.J.), rendered September 4, 2008. The judgment convicted
defendant, upon his plea of guilty, of manslaughter in the first
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of manslaughter in the first degree (Penal
Law § 125.20 [1]). Defendant was indicted for murder in the second
degree (§ 125.25 [1]) and criminal possession of a weapon in the
second degree (§ 265.03 [1] [b]), but he pleaded guilty to
manslaughter on the condition that he waive his right to appeal.
Contrary to defendant’s contention, the record demonstrates that he
validly waived his right to appeal. We conclude that County Court did
not indicate to defendant that he automatically forfeited his right to
appeal upon pleading guilty (cf. People v Moyett, 7 NY3d 892).
Rather, the court “engaged in a fuller colloquy, describing the nature
of the right being waived without lumping that right into the panoply
of trial rights automatically forfeited upon pleading guilty” (People
v Lopez, 6 NY3d 248, 257).

     Defendant failed to preserve for our review his challenge to the
factual sufficiency of the plea colloquy because he neither moved to
withdraw the plea nor moved to vacate the judgment of conviction (see
People v Lopez, 71 NY2d 662, 665). In any event, that challenge is
encompassed by defendant’s valid waiver of the right to appeal (see
People v Adzajlic, 74 AD3d 1866).

Entered:   February 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
