Opinion
246 KA 17–00951
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Baqi MUTI, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND WINSLOW,
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 two counts of attempted burglary in the third degree ( Penal Law §§ 110.00, 140.20 ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see People v. Porterfield, 107 A.D.3d 1478, 1478, 965 N.Y.S.2d 922 [4th Dept. 2013], lv denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013] ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). 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. Suttles, 107 A.D.3d 1467, 1468, 965 N.Y.S.2d 904 [4th Dept. 2013], lv denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] [internal quotation marks omitted] ), and the record establishes that he "understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Contrary to defendant's further contention, his waiver of the right to appeal was "not rendered invalid based on the court's failure to require [him] to articulate the waiver in his own words" ( People v. Dozier, 59 A.D.3d 987, 987, 872 N.Y.S.2d 317 [4th Dept. 2009], lv denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931 [2009] ). "Although defendant's release to parole supervision does not render his challenge to the severity of the sentence moot because he remains under the control of the Parole Board until his sentence has terminated" ( People v. Williams, 160 A.D.3d 1470, 1471, 72 N.Y.S.3d 906 [4th Dept. 2018] [internal quotation marks omitted] ), we conclude that the valid waiver of the right to appeal with respect to both the conviction and sentence forecloses defendant's challenge to the severity of his sentence (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).