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

83
KA 08-00281
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

CARL GOOSSENS, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered January 9, 2007. The judgment convicted
defendant, upon his plea of guilty, of rape 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 plea of guilty of rape in the third degree (Penal Law §
130.25 [2]). We reject defendant’s contention that his waiver of the
right to appeal was invalid (see generally People v Lopez, 6 NY3d 248,
256). Although defendant’s further contention that his plea was not
knowingly, voluntarily and intelligently entered survives his valid
waiver of the right to appeal, defendant failed to preserve that
contention for our review (see People v Davis, 45 AD3d 1357, lv denied
9 NY3d 1005; People v Jones, 42 AD3d 968). 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), “inasmuch as nothing in the plea colloquy casts significant
doubt on defendant’s guilt or the voluntariness of the plea” (People v
Lewandowski, 82 AD3d 1602, 1602; see Jones, 42 AD3d 968). Defendant’s
valid waiver of the right to appeal encompasses his further contention
that County Court failed to afford him sufficient time to retain a new
attorney (see People v La Bar, 16 AD3d 1084, lv denied 5 NY3d 764;
People v Morgan, 275 AD2d 970, lv denied 96 NY2d 761) and, in any
event, defendant failed to preserve that contention for our review
(see CPL 470.05 [2]). Finally, the challenge by defendant to the
court’s suppression ruling is also encompassed by his valid waiver of
the right to appeal (see People v Kemp, 94 NY2d 831, 833; People v
                               -2-                   83
                                              KA 08-00281

Bell, 89 AD3d 1518).




Entered:   February 17, 2012         Frances E. Cafarell
                                     Clerk of the Court
