Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Charles HICKS, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered December 9, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for defendant-appellant.Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of Counsel), for respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon a plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4] ), defendant contends that his waiver of the right to appeal was invalid. We reject that contention. Despite defendant's contention to the contrary, the record establishes that he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea bargain ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Supreme Court “engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. James, 71 A.D.3d 1465, 1465, 898 N.Y.S.2d 391 [internal quotation marks omitted] ), 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). The challenge by defendant to the court's suppression ruling is encompassed by his valid waiver of the right to appeal ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754; People v. Williams, 49 A.D.3d 1281, 856 N.Y.S.2d 334, lv. denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, and MARTOCHE, JJ., concur.