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

604
KA 15-01732
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CORDERO R. GIBSON, DEFENDANT-APPELLANT.


DOMINIC SARACENO, BUFFALO, FOR DEFENDANT-APPELLANT.

NIAGARA COUNTY DISTRICT ATTORNEY’S OFFICE, LOCKPORT (THOMAS H. BRANDT
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered October 31, 2012. 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]). The conviction arises from an attempted robbery
committed by defendant and a codefendant, during which the codefendant
shot and killed a man. Defendant was charged with, inter alia, felony
murder (§ 125.25 [3]), and he pleaded guilty to manslaughter in the
first degree as a lesser included offense under the felony murder
count. The factual allocution at the plea proceeding, however,
established the elements of felony murder rather than those of
manslaughter.

     Initially, we conclude that defendant made a knowing, voluntary,
and intelligent waiver of his right to appeal (see People v Adams, 94
AD3d 1428, 1428-1429, lv denied 19 NY3d 970; see generally People v
Sanders, 25 NY3d 337, 340-342), and that the waiver encompasses his
challenge to the severity of his sentence (see People v Hidalgo, 91
NY2d 733, 737; People v Bailey, 137 AD3d 1620, 1621; cf. People v
Maracle, 19 NY3d 925, 927-928).

     Defendant further contends that his plea of guilty was not
knowingly, voluntarily, and intelligently entered. To the extent that
defendant’s contention survives his waiver of the right to appeal (see
People v Bishop, 115 AD3d 1243, 1244, lv denied 23 NY3d 1018,
reconsideration denied 24 NY3d 1082), we conclude that it is not
preserved for our review inasmuch as his motion to withdraw his plea
                                 -2-                           604
                                                         KA 15-01732

was made on grounds different from those advanced on appeal (see
People v Green, 132 AD3d 1268, 1268-1269; cf. People v Johnson, 23
NY3d 973, 975).

     We further conclude that this case does not fall within the
“narrow exception” to the preservation rule (People v Lopez, 71 NY2d
662, 666). Although the plea allocution did not establish every
element of manslaughter in the first degree, it neither negated an
essential element of that crime nor otherwise cast doubt on the
voluntariness of the plea (see People v Brown, 115 AD3d 1204, 1205-
1206, lv denied 23 NY3d 1060; People v Royal, 306 AD2d 886, 887, lv
denied 100 NY2d 624), and no factual basis for a guilty plea is
necessary where, as here, the defendant enters a negotiated plea to a
lesser offense than that charged in the indictment (see Johnson, 23
NY3d at 975; People v Norman, 128 AD3d 1418, 1419, lv denied 27 NY3d
1003). We note that a guilty plea to manslaughter in the first degree
is permissible in satisfaction of a felony murder charge involving the
same victim even though the former crime is not technically a lesser
included offense of the latter (see People v Adams, 57 NY2d 1035,
1037-1038; People v Lebron, 238 AD2d 150, 150, lv denied 90 NY2d 895,
cert denied 522 US 1032; see generally CPL 220.20; People v Johnson,
89 NY2d 905, 907-908), and we reject defendant’s contention that the
discrepancy between his plea to manslaughter and his allocution to
felony murder, standing alone, is sufficient to undermine the validity
of the plea (see People v Foster, 19 NY2d 150, 152-154; People v
Torres, 125 AD2d 252, 253, lv denied 69 NY2d 834; cf. Johnson, 23 NY3d
at 975-976; People v Worden, 22 NY3d 982, 985-986). Contrary to
defendant’s further contention, we conclude that the court was not
obligated to conduct any inquiry of him concerning the statutory
affirmative defense to felony murder (see generally Penal Law § 125.25
[3]) because nothing in the plea colloquy raised the possibility that
the affirmative defense was applicable in this case (see People v
Heyward, 111 AD2d 420, 420-421; see generally People v Hill, 128 AD3d
1479, 1480, lv denied 26 NY3d 930; People v Masterson, 57 AD3d 1443,
1443).




Entered:   June 17, 2016                       Frances E. Cafarell
                                               Clerk of the Court
