Opinion
888 KA 17–01706
10-04-2019
The PEOPLE of the State of New York, Respondent, v. Lawrence COLBERT, Jr., Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND TROUTMAN, 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 his plea of guilty of attempted murder in the second degree ( Penal Law §§ 110.00, 125.25 [1 ] ), defendant contends that his waiver of the right to appeal was invalid because the oral and written waivers were inadequate. We reject that contention. The plea allocution establishes that the oral waiver was voluntarily, knowingly, and intelligently entered, even though defendant gave one-word answers to County Court's questions (see People v. Frazier , 63 A.D.3d 1633, 1633, 880 N.Y.S.2d 809 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ; cf. People v. Wilson , 159 A.D.3d 1542, 1544, 73 N.Y.S.3d 715 [4th Dept. 2018], lv. denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ). Although a "written waiver of the right to appeal ... does not serve to validate [an] otherwise inadequate oral waiver where ... there is no indication that [the court] obtained a knowing and voluntary waiver of that right at the time of the plea" ( People v. Homer , 151 A.D.3d 1949, 1949, 57 N.Y.S.3d 328 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] [internal quotation marks omitted] ), here, the oral waiver was adequate. Defendant's valid waiver of the right to appeal forecloses his challenge to the severity of the sentence (see People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).