SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
512
KA 10-01151
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GREGORY J. THOMPSON, DEFENDANT-APPELLANT.
PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered April 19, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a forged instrument in the second 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 attempted criminal possession of a forged
instrument in the second degree (Penal Law §§ 110.00, 170.25). We
reject defendant’s contention that his waiver of the right to appeal
was not knowingly, voluntarily, and intelligently entered (see People
v Lopez, 6 NY3d 248, 256). County Court “ ‘expressly ascertained from
defendant that, as a condition of the plea, he was agreeing to waive
his right to appeal, and the court did not conflate that right with
those automatically forfeited by a guilty plea’ ” (People v Porter, 55
AD3d 1313, lv denied 11 NY3d 899). Although the further contention of
defendant that his guilty plea was not knowingly and voluntarily
entered survives his valid waiver of the right to appeal (see People v
Bland, 27 AD3d 1052, 1052-1053, lv denied 6 NY3d 892), defendant
failed to preserve his contention for our review by failing to move to
withdraw his plea or to vacate the judgment of conviction (see People
v Smith, 48 AD3d 1171, lv denied 10 NY3d 964; Bland, 27 AD3d at 1052-
1053). This case does not fall within the narrow exception to the
preservation doctrine (see People v Lopez, 71 NY2d 662, 666; Smith, 48
AD3d at 1171).
Defendant failed to preserve for our review his further
contention concerning the failure to comply with the procedural
requirements set forth in CPL 400.21 (see People v Pellegrino, 60 NY2d
636, 637; People v Vega, 49 AD3d 1185, 1186, lv denied 10 NY3d 965).
In any event, defendant waived strict compliance with the statute by
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KA 10-01151
admitting his commission of the prior felony conviction in open court
(see Vega, 49 AD3d at 1186; People v Harris, 233 AD2d 959, lv denied
89 NY2d 1094).
We have reviewed defendant’s remaining contentions and conclude
that they are without merit.
Entered: April 29, 2011 Patricia L. Morgan
Clerk of the Court