Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Jason SLISHEVSKY, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ), defendant contends that his waiver of the right to appeal is not valid. We reject that contention and conclude that 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. Marshall, 144 A.D.3d 1544, 1545, 41 N.Y.S.3d 337 [internal quotation marks omitted]; see People v. Korber, 89 A.D.3d 1543, 1543, 932 N.Y.S.2d 780, lv. denied 19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436 ). "[A] trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned" (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), and "[t]he plea allocution as a whole establishes that defendant's waiver of the right to appeal was knowing, intelligent, and voluntary" (People v. Brown, 281 A.D.2d 962, 962, 723 N.Y.S.2d 301, lv. denied 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84 ).
Here, we conclude that the court "made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Graham, 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490, lv. denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813, quoting Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The valid waiver of the right to appeal forecloses our review of defendant's contention that the sentence is unduly harsh and severe (see generally 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 ), as well as his constitutional challenges, which in any event we have already determined to be without merit (see People v. Slishevsky, 97 A.D.3d 1148, 1151, 948 N.Y.S.2d 497, lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.