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

89
KA 14-02223
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENNETH S. LATHROP, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), rendered June 11, 2014. The judgment
convicted defendant, upon his plea of guilty, of reckless assault of a
child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of reckless assault of a child (Penal Law §
120.02 [1]). Contrary to defendant’s contention, the record
establishes that he validly waived his right to appeal both orally and
in writing before pleading guilty. The record establishes that
Supreme Court conducted “ ‘an adequate colloquy to ensure that the
waiver of the right to appeal was a knowing and voluntary choice’ ”
(People v Glasper, 46 AD3d 1401, 1401, lv denied 10 NY3d 863; see
People v Barber, 117 AD3d 1430, 1430, lv denied 24 NY3d 1081).
Defendant contends that his plea was not knowingly and intelligently
entered because he did not admit that his actions caused a serious
physical injury to the child. Defendant’s contention is actually a
challenge to the factual sufficiency of the plea allocution (see
People v Schmidli, 118 AD3d 1491, 1491, lv denied 23 NY3d 1067; People
v Daniels, 59 AD3d 943, 943, lv denied 12 NY3d 852), which does not
survive his valid waiver of the right to appeal (see People v
Zimmerman, 100 AD3d 1360, 1361, lv denied 20 NY3d 1015; People v
Wackwitz, 93 AD3d 1220, 1221, lv denied 19 NY3d 868; Daniels, 59 AD3d
at 943). In any event, defendant failed to preserve that contention
for our review because he did not move to withdraw the plea or to
vacate the judgment of conviction on that ground (see Wackwitz, 93
AD3d at 1221; People v Copp, 78 AD3d 1548, 1549, lv denied 16 NY3d
797). To the extent that defendant contends that the court abused its
discretion in denying his motion to withdraw his plea, we conclude
                                 -2-                            89
                                                         KA 14-02223

that it is without merit (see People v Davis, 129 AD3d 1613, 1613-
1614, lv denied 26 NY3d 966). The valid waiver of the right to appeal
encompasses defendant’s further contention that the sentence is unduly
harsh and severe (see People v Lopez, 6 NY3d 248, 256).




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
