Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. Dale W. BRAND, Defendant–Appellant.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered December 21, 2011. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree and criminal possession of a weapon in the third degree. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered December 21, 2011. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree and criminal possession of a weapon in the third degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05[2] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that his waiver of the right to appeal was invalid. We reject that contention. The plea colloquy conducted by County Court adequately apprised defendant 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; see People v. Graham, 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490, lv. denied15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813). Contrary to defendant's contention, his “ ‘waiver [of the right to appeal] is not invalid on the ground that the court did not specifically inform [him] that his general waiver of the right to appeal encompassed the court's suppression rulings' ” (Graham, 77 A.D.3d at 1439, 908 N.Y.S.2d 490). Moreover, defendant's history of mental illness did not invalidate the waiver of the right to appeal inasmuch as there was no showing that “ ‘defendant was uninformed, confused or incompetent when he’ waived his right to appeal” (People v. DeFazio, 105 A.D.3d 1438, 1439, 963 N.Y.S.2d 497, lv. denied21 N.Y.3d 1015, 971 N.Y.S.2d 497, 994 N.E.2d 393). The valid waiver by defendant of the right to appeal encompasses his challenge to the suppression rulings ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754), and his challenge to the severity of the sentence ( see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see generally People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, and VALENTINO, JJ., concur.