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

1182
KA 12-01678
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DANA GARNER, 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 (Barry M.
Donalty, J.), rendered October 19, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary 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 his plea of guilty, of attempted burglary in the second degree
(Penal Law §§ 110.00, 140.25 [2]). Contrary to defendant’s
contention, we conclude that his waiver of the right to appeal was
knowingly, voluntarily, and intelligently entered (see People v Lopez,
6 NY3d 248, 256). To the extent that defendant challenges the factual
sufficiency of the plea allocution, that challenge is encompassed by
the valid waiver of the right to appeal (see People v Topolski, 106
AD3d 1532, 1533, lv denied 21 NY3d 1020). Although defendant’s
contention that the plea was not knowingly, voluntarily and
intelligently entered survives the valid waiver of the right to appeal
(see People v Theall, 109 AD3d 1107, 1107-1108), we conclude based
upon the record before us that his contention lacks merit (see
generally People v Seeber, 4 NY3d 780, 781-782).




Entered:   November 15, 2013                       Frances E. Cafarell
                                                   Clerk of the Court
