Opinion
426 KA 18–01369
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Holiday JOHNSON,Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
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 criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). We agree with the People that the record establishes that defendant validly waived his right to appeal. County Court engaged defendant in "an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Kastenhuber, 180 A.D.3d 1333, 1334, 115 N.Y.S.3d 730 [4th Dept. 2020] [internal quotation marks omitted]; see generally People v. Thomas, 34 N.Y.3d 545, 559–61, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *4–6 [2019] ). Contrary to defendant's contention, the court was "not required to engage in any particular litany in order to obtain a valid waiver of the right to appeal ..., and the waiver is not invalid on the ground that the court did not specifically inform defendant that his general waiver of the right to appeal encompassed the court's suppression ruling[ ]" ( People v. Babagana, 176 A.D.3d 1627, 1627, 107 N.Y.S.3d 915 [4th Dept. 2019], lv denied 34 N.Y.3d 1075, 116 N.Y.S.3d 143, 139 N.E.3d 801 [2019] [internal quotation marks omitted] ). Moreover, we conclude that the court did not conflate defendant's waiver of the right to appeal with those rights automatically forfeited by a guilty plea (see generally People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Sallard, 175 A.D.3d 1839, 1839, 109 N.Y.S.3d 547 [4th Dept. 2019] ).
Defendant's "valid waiver of the right to appeal forecloses [his] challenges to the court's suppression ruling" ( Kastenhuber, 180 A.D.3d at 1334, 115 N.Y.S.3d 730 ; see also People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ). The valid waiver also "forecloses his challenge to the severity of the sentence" ( People v. Sanders, 180 A.D.3d 1327, 1328, 115 N.Y.S.3d 727 [4th Dept. 2020] ).