Opinion
2012-04-20
The PEOPLE of the State of New York, respondent, v. Nicole L. COLUCCI, defendant-appellant.
David J. Farrugia, Public Defender, Lockport (Mary–Jean Bowman of Counsel), for defendant-appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for respondent.
David J. Farrugia, Public Defender, Lockport (Mary–Jean Bowman of Counsel), for defendant-appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon her plea of guilty of manslaughter in the second degree (Penal Law § 125.15 [1] ). We reject defendant's contention that her waiver of the right to appeal was invalid ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). The plea colloquy and the written waiver of the right to appeal signed by defendant demonstrate that she knowingly, intelligently and voluntarily waived the right to appeal ( see People v. James, 71 A.D.3d 1465, 1465, 898 N.Y.S.2d 391), and the record establishes that “ ‘defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( People v. Dunham, 83 A.D.3d 1423, 1424, 919 N.Y.S.2d 258, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097, quoting Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Defendant's further contention that County Court erred in relying upon improper statements by the prosecutor during sentencing does not survive defendant's valid waiver of the right to appeal “inasmuch as defendant is essentially challenging the procedure pursuant to which [she] was sentenced ..., rather than the legality of the sentence ... ‘Because the power of the court is not implicated by [that] challenge[ ], appellate review of [that challenge] is foreclosed by the bargained-for waiver of [the right to] appeal’ ” ( People v. Adams, 64 A.D.3d 1186, 1187, 881 N.Y.S.2d 751, lv. denied 13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965).
Finally, defendant's challenge to the severity of the sentence is encompassed by her valid waiver of the right to appeal ( see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.