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

846
KA 11-01820
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK A. LORENZ, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JODI A. DANZIG OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered September 22, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third degree (two counts).

     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 two counts of criminal sale of a controlled
substance in the third degree (Penal Law § 220.39 [1]). We reject
defendant’s contention that the waiver of the right to appeal is
invalid. The record establishes that County Court “ ‘engage[d] the
defendant in an adequate colloquy to ensure that the waiver of the
right to appeal was a knowing and voluntary choice’ ” (People v
Ripley, 94 AD3d 1554, 1554, lv denied 19 NY3d 976), and that defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty (see People
v Lopez, 6 NY3d 248, 256; Ripley, 94 AD3d at 1554; People v Korber, 89
AD3d 1543, 1543, lv denied 19 NY3d 864). Defendant’s valid waiver of
the right to appeal encompasses his challenge to the severity of the
sentence (see Lopez, 6 NY3d at 256; People v Raynor, 107 AD3d 1567,
1568, lv denied 22 NY3d 1090).

     Although defendant’s contention that his guilty plea was not
knowing, voluntary and intelligent survives his waiver of the right to
appeal, defendant failed to preserve that contention for our review
inasmuch as he withdrew his motion to withdraw his plea and did not
thereafter move to vacate the judgment of conviction (see People v
Jones, 114 AD3d 1080, 1081; People v Hodge, 85 AD3d 1680, 1680, lv
denied 18 NY3d 883). This case does not fall within the rare
exception to the preservation rule set forth in People v Lopez (71
                                 -2-                           846
                                                         KA 11-01820

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).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
