Opinion
11-09-2017
The PEOPLE of the State of New York, Respondent, v. Luis M. GARCIA, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ). Contrary to defendant's contention and the " concession" of the People, the record establishes that defendant validly waived his right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Upon our review of the colloquy, we conclude that Supreme Court "did not indicate to defendant that he automatically forfeited his right to appeal upon pleading guilty" ( People v. Tabb, 81 A.D.3d 1322, 1322, 916 N.Y.S.2d 567 [4th Dept.2011], lv. denied 16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ; cf. People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59 [2006] ). " Rather, the court ‘engaged in a fuller colloquy, describing the nature of the right being waived without lumping that right into the panoply of trial rights automatically forfeited upon pleading guilty’ " ( Tabb, 81 A.D.3d at 1322, 916 N.Y.S.2d 567, quoting Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Defendant's valid waiver of the right to appeal, which specifically included a waiver of the right to challenge the severity of the sentence, encompasses his contention that the sentence imposed is unduly harsh and severe (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 [1998] ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.