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

1201
KA 13-01730
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

SYLVESTER COLLINS, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered May 30, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal sale of a
controlled substance in the third degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted criminal sale of a controlled substance in
the third degree (Penal Law §§ 110.00, 220.39 [1]), defendant contends
that his waiver of the right to appeal and his guilty plea were not
knowing, voluntary, and intelligent. We reject defendant’s
contention. Defendant initially pleaded guilty, but County Court
permitted him to withdraw that plea. Defendant thereafter again
pleaded guilty and was sentenced. With respect to the second plea,
the record reflects that defendant waived the right to appeal “both
orally and in writing before pleading guilty, and the court conducted
an adequate colloquy to ensure that the waiver of the right to appeal
was a knowing and voluntary choice” (People v McGrew, 118 AD3d 1490,
1490-1491, lv denied 23 NY3d 1065 [internal quotation marks omitted];
see People v Nicholson, 6 NY3d 248, 257). Furthermore, “[a]lthough
defendant’s contention that the plea was not knowingly, voluntarily or
intelligently entered survives the waiver of the right to appeal, that
contention is not preserved for our review because defendant failed to
move to withdraw his plea or to vacate the judgment of conviction”
entered upon his second guilty plea (People v Neal, 56 AD3d 1211,
1211, lv denied 12 NY3d 761).


Entered:    November 21, 2014                      Frances E. Cafarell
                                                   Clerk of the Court
