Opinion
815 KA 22-00968
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Derek E. CLARK, Defendant-Appellant.
THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, GREENWOOD, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of aggravated vehicular homicide ( Penal Law § 125.14 [7] ), defendant contends that the sentence is unduly harsh and severe. Defendant, however, knowingly, voluntarily, and intelligently waived the right to appeal (see generally People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and the valid waiver encompasses his challenge to the severity of the sentence (see People v. Lollie , 204 A.D.3d 1430, 1431, 166 N.Y.S.3d 805 [4th Dept. 2022], lv denied 38 N.Y.3d 1134, 172 N.Y.S.3d 840, 193 N.E.3d 505 [2022] ). We note that, although the written waiver form executed by defendant incorrectly portrays the waiver as an absolute bar to the taking of an appeal (see generally People v. Thomas , 34 N.Y.3d 545, 564-567, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ), County Court's oral colloquy, which followed the appropriate model colloquy, cured that defect (see People v. Jackson , 198 A.D.3d 1317, 1318, 154 N.Y.S.3d 731 [4th Dept. 2021], lv denied 37 N.Y.3d 1096, 156 N.Y.S.3d 790, 178 N.E.3d 437 [2021] ).