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

308
KA 10-01508
PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY S. WACKWITZ, SR., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (JOHN C. LUZIER
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered November 9, 2009. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the third
degree and scheme to defraud in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of grand larceny in the third
degree (Penal Law former § 155.35) and scheme to defraud in the first
degree (§ 190.65 [1] [b]). In appeal No. 2, he appeals from a
judgment convicting him, upon the same plea of guilty, of burglary in
the third degree (§ 140.20). Contrary to the contention of defendant
in both appeals, his waiver of the right to appeal was valid. 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 treat that right as one of the rights automatically forfeited
by a guilty plea” (People v Bilus, 44 AD3d 325, 326, lv denied 9 NY3d
1031; see People v Lopez, 6 NY3d 248, 256-257; cf. People v Moyett, 7
NY3d 892). The valid waiver encompasses defendant’s challenge to the
factual sufficiency of the plea allocution (see People v Jackson, 50
AD3d 1615, 1615-1616, lv denied 10 NY3d 960). In any event, defendant
failed to move to withdraw the plea or to vacate the judgments of
conviction on that ground and thus failed to preserve that challenge
for our review (see People v Lopez, 71 NY2d 662, 665). This case does
not fall within the rare exception to the preservation requirement set
forth in Lopez (71 NY2d at 666). Even assuming, arguendo, that
defendant’s statements during the colloquy called into question the
voluntariness of the plea and thus that the preservation exception
applies, we conclude upon our review of the record that the court made
                                 -2-                           308
                                                         KA 10-01508

sufficient further inquiry to ensure that defendant’s plea was knowing
and voluntary (see id.).




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
