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

852
KA 11-00684
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ADAM THEALL, 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 (Michael L.
Dwyer, J.), rendered November 18, 2010. The judgment convicted
defendant, upon his plea of guilty, of murder in the second 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 murder in the second degree (Penal Law § 125.25
[1]), defendant contends, inter alia, that his waiver of the right to
appeal is invalid and that his plea was not knowingly, voluntarily or
intelligently entered because the factual allocution negated his
intent to kill, which is an essential element of the crime to which he
pleaded guilty. It is well settled that a contention that a guilty
plea is not knowing, voluntary and intelligent survives a valid waiver
of the right to appeal (see People v Cloyd, 78 AD3d 1669, 1670, lv
denied 16 NY3d 857; People v Trinidad, 23 AD3d 1060, 1061, lv denied 6
NY3d 760; see generally People v Seaberg, 74 NY2d 1, 10). Defendant,
however, “failed to preserve that contention for our review by moving
to withdraw the plea or to vacate the judgment of conviction”
(Trinidad, 23 AD3d at 1061; see Cloyd, 78 AD3d at 1670). “Contrary to
defendant’s contention, this case does not fall within the rare
exception to the preservation rule” (Trinidad, 23 AD3d at 1061; see
generally People v Lopez, 71 NY2d 662, 666). “Although the initial
statements of defendant during the factual allocution may have negated
the essential element of his intent to cause death, his further
statements removed any doubt regarding that intent” (Trinidad, 23 AD3d
at 1061; see Cloyd, 78 AD3d at 1670). In any event, County Court
“conducted the requisite further inquiry to ensure that defendant
understood the nature of the charge and that the plea was
intelligently entered” (People v Glasper, 46 AD3d 1401, 1402, lv
denied 10 NY3d 863).
                                 -2-                          852
                                                        KA 11-00684

     Even assuming, arguendo, that the waiver of the right to appeal
is invalid (see People v Keiser, 100 AD3d 927, 928, lv denied 20 NY3d
1062; see also People v Bradshaw, 76 AD3d 566, 569, affd 18 NY3d 257),
we would nevertheless reject defendant’s contention that the sentence
is unduly harsh or severe.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
