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

504
KA 09-02626
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

PAUL TOPOLSKI, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered December 10, 2009. The judgment convicted
defendant, upon his plea of guilty, of felony driving while
intoxicated.

     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 felony driving while intoxicated (Vehicle
and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]). Contrary to
defendant’s contention, we conclude that his waiver of the right to
appeal was knowingly, voluntarily, and intelligently entered (see
People v Lopez, 6 NY3d 248, 256; People v Pratt, 77 AD3d 1337, 1337,
lv denied 15 NY3d 955). Defendant further contends that his plea was
not knowingly, voluntarily, and intelligently entered because he
failed to recite the underlying facts of the crime to which he pleaded
guilty and, upon questioning by the court, he could not recall how
much he had to drink on the date of the crime. Defendant’s contention
is actually a challenge to the factual sufficiency of the plea
allocution, and thus that challenge and his challenge to the severity
of the sentence are encompassed by the valid waiver of the right to
appeal (see Lopez, 6 NY3d at 256; People v Lococo, 92 NY2d 825, 827;
People v Walton, 101 AD3d 1792, 1792; People v Grant, 96 AD3d 1697,
1697, lv denied 19 NY3d 997).




Entered:   May 3, 2013                             Frances E. Cafarell
                                                   Clerk of the Court
