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

483
KA 13-00990
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CHRISTOPHER MCCREA, DEFENDANT-APPELLANT.


MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Michael F.
Griffith, J.), rendered April 3, 2013. The judgment convicted
defendant, upon his plea of guilty, of perjury 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 perjury in the first degree (Penal Law
§ 210.15). We reject defendant’s contention that his waiver of the
right to appeal was not knowingly, voluntarily, and intelligently
entered (see People v Lopez, 6 NY3d 248, 256). “County Court
expressly ascertained from defendant that, as a condition of the plea,
he was agreeing to waive his right to appeal, and the court did not
conflate that right with those automatically forfeited by a guilty
plea” (People v Thompson, 83 AD3d 1535, 1535 [internal quotation marks
omitted]; see People v Villar, 115 AD3d 1361, 1361, lv denied 23 NY3d
1044). Defendant’s challenge to the factual sufficiency of the plea
allocution is encompassed by his valid waiver of the right to appeal
(see People v Oberdorf, 136 AD3d 1291, 1292; People v Rosado, 70 AD3d
1315, 1316, lv denied 14 NY3d 892). In any event, defendant failed to
preserve that contention for our review because he did not move to
withdraw the plea or to vacate the judgment of conviction on that
ground (see Oberdorf, 136 AD3d at 1292; People v Wackwitz, 93 AD3d
1220, 1221, lv denied 19 NY3d 868).




Entered:    June 10, 2016                          Frances E. Cafarell
                                                   Clerk of the Court
