Opinion
2012-12-6
The PEOPLE of the State of New York, Respondent, v. Richard BALIRAJ, Appellant.
Theordore J. Stein, Woodstock, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Theordore J. Stein, Woodstock, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: MERCURE, J.P., ROSE, LAHTINEN, McCARTHY and EGAN JR., JJ.
LAHTINEN, J.
Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered April 8, 2011, convicting defendant upon his plea of guilty of the crime of gang assault in the second degree.
Following a shooting in which a person died, defendant and three others were charged in a 32–count indictment with various crimes, including murder in the second degree and gang assault in the first degree. Although Huntley and Wade hearings were conducted, defendant's request for a Dunaway hearing was denied. At the commencement of trial, defendant entered into a plea deal in which he pleaded guilty to gang assault in the second degree in satisfaction of all charges against him, waived his right to appeal and received a sentence of 10 years in prison plus postrelease supervision. Defendant appeals contending that his waiver of the right to appeal was not valid and that a Dunaway hearing should have been conducted.
We affirm. Initially, we note that, contrary to the People's contention, a motion to withdraw the plea or vacate the judgment of conviction is not required to preserve a challenge to the validity of a waiver of the right to appeal ( see People v. Lewis, 48 A.D.3d 880, 880–881, 851 N.Y.S.2d 295 [2008] ). For a waiver of the right to appeal to be effective, defendant must make such waiver knowingly, intelligently and voluntarily ( see People v. Bradshaw, 18 N.Y.3d 257, 259, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ), which includes the record clearly establishing that “defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Here, County Court separately explained the right to appeal, that such right (unlike other rights) was not forfeited by pleading guilty, and inquired whether defendant understood that he was waiving this particular right as part of the plea bargain. Defendant answered in the affirmative. Moreover, defendant executed a detailed written waiver of his right to appeal acknowledging, among other things, that he had discussed the waiver with counsel and that he was voluntarily and knowingly waiving the right. The record establishes that the waiver of the right to appeal was valid ( see People v. Dishaw, 81 A.D.3d 1035, 1036, 916 N.Y.S.2d 295 [2011],lv. denied16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011];People v. Gilmour, 61 A.D.3d 1122, 1123, 876 N.Y.S.2d 553 [2009],lv. denied12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ). Defendant's contention regarding his motion for a Dunaway hearing is foreclosed by the valid waiver of the right to appeal ( see People v. Lewis, 95 A.D.3d 1442, 1443, 944 N.Y.S.2d 388 [2012],lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012];People v. White, 75 A.D.3d 837, 838, 905 N.Y.S.2d 681 [2010],lv. denied15 N.Y.3d 925, 913 N.Y.S.2d 652, 939 N.E.2d 818 [2010] ).
ORDERED that the judgment is affirmed.