Opinion
No. 582 KA 21-00002
07-08-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL CARR, DEFENDANT-APPELLANT.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT. TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN, FOR RESPONDENT.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT.
TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN, FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, WINSLOW, AND BANNISTER, JJ.
Appeal from a judgment of the Yates County Court (Jason L. Cook, J.), rendered October 27, 2020. The judgment convicted defendant upon a plea of guilty of burglary in the second degree and burglary in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]) and burglary in the third degree (§ 140.20), defendant contends that his waiver of the right to appeal is invalid and that the sentence is unduly harsh and severe. Contrary to defendant's contention, the record establishes that he knowingly, intelligently and voluntarily waived his right to appeal (see generally People v Lopez, 6 N.Y.3d 248, 256 [2006]), and we note that County Court used the appropriate model colloquy with respect to the waiver of the right to appeal (see generally People v Thomas, 34 N.Y.3d 545, 567 [2019], cert denied ____ U.S. ____, 140 S.Ct. 2634 [2020]; People v Jeffords, 185 A.D.3d 1417, 1417-1418 [4th Dept 2020], lv denied 35 N.Y.3d 1095 [2020]). Further, the court inquired about defendant's asserted mental health issues, and those issues "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 the right to appeal" (People v Henderson, 162 A.D.3d 1507, 1507 [4th Dept 2018], lv denied 32 N.Y.3d 1004 [2018] [internal quotation marks omitted]; see People v Brand, 112 A.D.3d 1320, 1321 [4th Dept 2013], lv denied 23 N.Y.3d 961 [2014]). The valid waiver of the right to appeal encompasses his challenge to the severity of the bargained-for sentence (see People v Lococo, 92 N.Y.2d 825, 827 [1998]; see also Lopez, 6 N.Y.3d at 255-256).