otherwise valid waiver in New York

2015Preliminarily, we note that these contentions survive the defendant’s otherwise valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Niedwieski, 100 AD3d 1023 [2012]; People v Isaacs, 71 AD3d 1161 [2010]), and are not subject to the preservation requirement since the Supreme Court did not give the defend *547 ant a sufficient opportunity to withdraw his plea of guilty before imposing restitution and a fine (see People v Turner, 24 NY3d 254, 259 [2014]; People v Molinaro, 126 AD3d 726 [2015]).

2012Although the defendant’s remaining contentions also survive an otherwise valid waiver of his right to appeal (see People v Seaberg, 74 NY2d 1 [1989]), they are without merit.

2015In People v Brathwaite ( 263 AD2d 89 [2000]), this Court noted that “[a] defendant may not waive his right to appellate review of certain claims, such as . . . constitutional claims” that “implicate a larger societal interest in their correct resolution which embrace [s] the reality of fairness in the process itself” (id. at 91 [internal quotation marks omitted]; see People v Callahan, 80 NY2d 273, 280 [1992]; People v Seaberg, 74 NY2d 1, 9 [1989]).

1993The People concede that this claim may be raised on appeal notwithstanding the defendant’s otherwise valid waiver of his right to appellate review (see, People v Callahan, 80 NY2d 273 ; People v Seaberg, 74 NY2d 1 ).

2025Such a conclusion, of course, is entirely at odds with existing precedent ( see Giles , 219 AD3d at 1707 ; see also Parker , 151 AD3d at 1876; see generally People v Johnson , — NY3d &mdash, &mdash, 2025 NY Slip Op 06528, *2 [2025]).

2025Such a conclusion, of course, is entirely at odds with existing precedent ( see Giles , 219 AD3d at 1707 ; see also Parker , 151 AD3d at 1876; see generally People v Johnson , — NY3d &mdash, &mdash, 2025 NY Slip Op 06528, *2 [2025]).

2025Such a conclusion, of course, is entirely at odds with existing precedent ( see Giles , 219 AD3d at 1707 ; see also Parker , 151 AD3d at 1876; see generally People v Johnson , — NY3d &mdash, &mdash, 2025 NY Slip Op 06528, *2 [2025]).

2025Such a conclusion, of course, is entirely at odds with existing precedent ( see Giles , 219 AD3d at 1707 ; see also Parker , 151 AD3d at 1876; see generally People v Johnson , — NY3d &mdash, &mdash, 2025 NY Slip Op 06528, *2 [2025]).

2012With respect to defendant’s ineffective assistance of counsel claim, to the extent that such claim impacts upon the voluntariness of defendant’s plea, it survives the otherwise valid waiver of the right to appeal (see People v Jimenez, 96 AD3d 1109, 1110 [2012]; People v Planty, 85 AD3d at 1318 ) but, absent an appropriate motion, is unpreserved for our review (see People v Small, 82 AD3d 1451, 1452 [2011], lv denied 17 NY3d 801 [2011] ; People v Peterkin, 77 AD3d 1017, 1017-1018 [2010]).

2012With respect to defendant’s ineffective assistance of counsel claim, to the extent that such claim impacts upon the voluntariness of defendant’s plea, it survives the otherwise valid waiver of the right to appeal (see People v Jimenez, 96 AD3d 1109, 1110 [2012]; People v Planty, 85 AD3d at 1318 ) but, absent an appropriate motion, is unpreserved for our review (see People v Small, 82 AD3d 1451, 1452 [2011], lv denied 17 NY3d 801 [2011] ; People v Peterkin, 77 AD3d 1017, 1017-1018 [2010]).

2012With respect to defendant’s ineffective assistance of counsel claim, to the extent that such claim impacts upon the voluntariness of defendant’s plea, it survives the otherwise valid waiver of the right to appeal (see People v Jimenez, 96 AD3d 1109, 1110 [2012]; People v Planty, 85 AD3d at 1318 ) but, absent an appropriate motion, is unpreserved for our review (see People v Small, 82 AD3d 1451, 1452 [2011], lv denied 17 NY3d 801 [2011] ; People v Peterkin, 77 AD3d 1017, 1017-1018 [2010]).

2012With respect to defendant’s ineffective assistance of counsel claim, to the extent that such claim impacts upon the voluntariness of defendant’s plea, it survives the otherwise valid waiver of the right to appeal (see People v Jimenez, 96 AD3d 1109, 1110 [2012]; People v Planty, 85 AD3d at 1318 ) but, absent an appropriate motion, is unpreserved for our review (see People v Small, 82 AD3d 1451, 1452 [2011], lv denied 17 NY3d 801 [2011] ; People v Peterkin, 77 AD3d 1017, 1017-1018 [2010]).

2012With respect to defendant’s ineffective assistance of counsel claim, to the extent that such claim impacts upon the voluntariness of defendant’s plea, it survives the otherwise valid waiver of the right to appeal (see People v Jimenez, 96 AD3d 1109, 1110 [2012]; People v Planty, 85 AD3d at 1318 ) but, absent an appropriate motion, is unpreserved for our review (see People v Small, 82 AD3d 1451, 1452 [2011], lv denied 17 NY3d 801 [2011] ; People v Peterkin, 77 AD3d 1017, 1017-1018 [2010]).

2012With respect to defendant’s ineffective assistance of counsel claim, to the extent that such claim impacts upon the voluntariness of defendant’s plea, it survives the otherwise valid waiver of the right to appeal (see People v Jimenez, 96 AD3d 1109, 1110 [2012]; People v Planty, 85 AD3d at 1318 ) but, absent an appropriate motion, is unpreserved for our review (see People v Small, 82 AD3d 1451, 1452 [2011], lv denied 17 NY3d 801 [2011] ; People v Peterkin, 77 AD3d 1017, 1017-1018 [2010]).

2012Although these contentions survive the defendant’s otherwise valid waiver of the right to appeal (see People v Alonzo, 90 AD3d 1065 [2011]; People v Isaacs, 71 AD3d 1161 [2010]), they are unpreserved for appellate review (see CPL 220.60 [3]; 470.05 [2]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Bunn, 79 AD3d 1143 [2010]).

2012Although these contentions survive the defendant’s otherwise valid waiver of the right to appeal (see People v Alonzo, 90 AD3d 1065 [2011]; People v Isaacs, 71 AD3d 1161 [2010]), they are unpreserved for appellate review (see CPL 220.60 [3]; 470.05 [2]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Bunn, 79 AD3d 1143 [2010]).

2012Although these contentions survive the defendant’s otherwise valid waiver of the right to appeal (see People v Alonzo, 90 AD3d 1065 [2011]; People v Isaacs, 71 AD3d 1161 [2010]), they are unpreserved for appellate review (see CPL 220.60 [3]; 470.05 [2]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Bunn, 79 AD3d 1143 [2010]).

2012Although these contentions survive the defendant’s otherwise valid waiver of the right to appeal (see People v Alonzo, 90 AD3d 1065 [2011]; People v Isaacs, 71 AD3d 1161 [2010]), they are unpreserved for appellate review (see CPL 220.60 [3]; 470.05 [2]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Bunn, 79 AD3d 1143 [2010]).

2011Although the claim survives the defendant’s otherwise valid waiver of his right to appeal (see People v Morrow, 48 AD3d 704, 705 [2008]; People v Stewart, 30 AD3d 624 [2006]), it is without merit.

2011Although this contention survives the defendant’s otherwise valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Williams, 84 AD3d 1417, 1418 [2011]; People v Morrow, 48 AD3d 704, 705 [2008]), it is without merit.

2019That is not a misapprehension that would support an application to withdraw a plea.”]; see also Garza, 586 US at __ , 139 S Ct at 749-750 [noting that “even the broadest appeal waiver does not deprive a defendant - 14 - - 15 - Nos. 87, 88, 89 of all appellate claims”]).

2019In any event, an otherwise valid waiver is not rendered involuntary simply because the defendant was willing to waive more rights than required (see People v Rudolph, 21 NY3d 497, 502-503 [2013] [“If anything, defendant pleaded guilty under the impression that the law was less favorable to him than we have held that it is—in other words, the plea offer he accepted may have been better than he thought.

2015Preliminarily, we note that these contentions survive the defendant’s otherwise valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Niedwieski, 100 AD3d 1023 [2012]; People v Isaacs, 71 AD3d 1161 [2010]), and are not subject to the preservation requirement since the Supreme Court did not give the defend *547 ant a sufficient opportunity to withdraw his plea of guilty before imposing restitution and a fine (see People v Turner, 24 NY3d 254, 259 [2014]; People v Molinaro, 126 AD3d 726 [2015]).

2011Although this contention survives the defendant’s otherwise valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Williams, 84 AD3d 1417, 1418 [2011]; People v Morrow, 48 AD3d 704, 705 [2008]), it is without merit.

2011Examination of the plea transcript makes clear that neither the defendant’s eligibility for the shock incarceration program (see Correction Law § 865 [1]), nor his ultimate admission to that program was a condition of the plea (see People v Martinez, 56 AD3d 800 [2008]; People v Taylor, 284 AD2d 573, 574 [2001]; cf. People v Vanguilder, 32 AD3d 1110, 1110-1111 [2006]; People v Christian, 158 AD2d 705, 705-706 [1990]).

2011Examination of the plea transcript makes clear that neither the defendant’s eligibility for the shock incarceration program (see Correction Law § 865 [1]), nor his ultimate admission to that program was a condition of the plea (see People v Martinez, 56 AD3d 800 [2008]; People v Taylor, 284 AD2d 573, 574 [2001]; cf. People v Vanguilder, 32 AD3d 1110, 1110-1111 [2006]; People v Christian, 158 AD2d 705, 705-706 [1990]).

2011Examination of the plea transcript makes clear that neither the defendant’s eligibility for the shock incarceration program (see Correction Law § 865 [1]), nor his ultimate admission to that program was a condition of the plea (see People v Martinez, 56 AD3d 800 [2008]; People v Taylor, 284 AD2d 573, 574 [2001]; cf. People v Vanguilder, 32 AD3d 1110, 1110-1111 [2006]; People v Christian, 158 AD2d 705, 705-706 [1990]).

2002Co., 90 NY2d 274, 281 [insurer required to deny claim within 30 days if defense against an otherwise valid claim was based upon statutory reason of intoxication]), and the arbitrator properly accepted evidence on this issue (see 11 NYCRR 65.17 [b] [5] [xiii] [a]; cf. Matter of Silverman, 61 NY2d 299, 308 ).