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

1468
KA 11-00252
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DERRICK WALTON, DEFENDANT-APPELLANT.


LEONARD, CURLEY & WALSH, PLLC, ROME (MARK C. CURLEY 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 October 20, 2010. The judgment convicted
defendant, upon his plea of guilty, of robbery 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 robbery in the third degree (Penal Law § 160.05),
defendant contends that his plea was not voluntarily, knowingly, and
intelligently entered because he did not recite one of the elements of
that crime, i.e., that he threatened the witness. Defendant’s
contention is actually a challenge to the factual sufficiency of the
plea allocution, and thus that challenge is encompassed by the valid
waiver of the right to appeal (see People v Peters, 59 AD3d 928, 928,
lv denied 12 NY3d 820; People v Branch, 49 AD3d 1206, 1206, lv denied
10 NY3d 932; People v Wilson, 38 AD3d 1348, 1348, lv denied 9 NY3d
927).




Entered:   December 28, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
