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

390
KA 09-01812
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JAMES A. RIOS, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, 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 April 17, 2009. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree
and criminal possession of a weapon 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 burglary in the third degree (Penal Law §
140.20) and criminal possession of a weapon in the second degree (§
265.03 [2]). We reject defendant’s contention that he did not
knowingly, voluntarily and intelligently waive his right to appeal.
Taking into account “the nature and terms of the [plea] agreement and
the age, experience and background of [defendant]” (People v Seaberg,
74 NY2d 1, 11), we conclude that the record of the plea colloquy
“establish[es] that the defendant understood that the right to appeal
is separate and distinct from those rights automatically forfeited
upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256; cf. People v
Moyett, 7 NY3d 892, 893). Defendant’s further contention that his
plea was not knowingly and voluntarily entered is actually a challenge
to the factual sufficiency of the plea allocution. That challenge “is
encompassed by the valid waiver of the right to appeal and is
unpreserved for our review inasmuch as [defendant] did not move to
withdraw the plea or to vacate the judgment of conviction on that
ground” (People v Bryant, 87 AD3d 1270, 1271, lv denied 18 NY3d 881).
In addition, “the waiver by defendant of the right to appeal
encompasses his contention that the sentence is unduly harsh and
severe” (People v Ruffins, 78 AD3d 1627, 1628).


Entered:    March 23, 2012                         Frances E. Cafarell
                                                   Clerk of the Court
