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

985
KA 14-01622
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYWAN HOWINGTON, DEFENDANT-APPELLANT.


LUCILLE M. RIGNANESE, DEWITT, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered June 23, 2014. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a controlled
substance in the third 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 criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]). We agree with
defendant that the waiver of the right to appeal is invalid because
“the minimal inquiry made by County Court was insufficient to
establish that the court engage[d] the defendant in an adequate
colloquy to ensure that the waiver of the right to appeal was a
knowing and voluntary choice” (People v Jones, 107 AD3d 1589, 1589, lv
denied 21 NY3d 1075 [internal quotation marks omitted]; see People v
Garcia-Cruz, 138 AD3d 1414, 1414, lv denied 28 NY3d 929; People v
Dudden, 138 AD3d 1452, 1453, lv denied 28 NY3d 929). Here, the court
failed to ensure that 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).

     Nevertheless, by failing to move to withdraw the plea or to
vacate the judgment of conviction, defendant has failed to preserve
for our review his challenge to the factual sufficiency of the plea
allocution (see People v Lopez, 71 NY2d 662, 665; People v Bertollini
[appeal No. 2], 141 AD3d 1163, 1164; People v Allen, 137 AD3d 1719,
1719, lv denied 27 NY3d 1127). In any event, we conclude that “the
allocution shows that the defendant understood the charges and made an
intelligent decision to enter a plea” (People v Goldstein, 12 NY3d
295, 301).
                                 -2-                           985
                                                         KA 14-01622

     Defendant’s challenge to the legal sufficiency of the evidence
before the grand jury does not survive the guilty plea (see People v
Gillett, 105 AD3d 1444, 1445; People v Lawrence, 273 AD2d 805, 805, lv
denied 95 NY2d 867; see generally People v Iannone, 45 NY2d 589, 600-
601). Defendant’s challenge to the sufficiency of the factual
allegations in the indictment likewise does not survive the guilty
plea (see People v Sims, 129 AD3d 1509, 1510, lv denied 26 NY3d 935;
People v Holt, 173 AD2d 644, 645; see generally Iannone, 45 NY2d at
600-601).




Entered:   November 18, 2016                   Frances E. Cafarell
                                               Clerk of the Court
