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

530
KA 10-00028
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ENRIQUE C. RUSH, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Mark A.
Violante, A.J.), rendered December 10, 2008. The judgment convicted
defendant, upon his plea of guilty, of attempted rape in the second
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 attempted rape in the second degree (Penal
Law §§ 110.00, 130.30 [1]). 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 Harris, 77 AD3d 1326, lv denied 16 NY3d 743).
“ ‘The valid waiver of the right to appeal encompasses defendant’s
contention concerning the [ultimate] denial of his request for
youthful offender status’ ” (People v Lyons, 86 AD3d 930, 931, lv
denied 17 NY3d 954; see Harris, 77 AD3d 1326), as well as his
contention concerning the severity of the sentence (see Lopez, 6 NY3d
at 255-256; Lyons, 86 AD3d at 931).




Entered:   April 20, 2012                          Frances E. Cafarell
                                                   Clerk of the Court
