Opinion
2014-11-14
The PEOPLE of the State of New York, Respondent, v. David COLON, Defendant–Appellant.
Frank J. Nebush, Jr., Public Defender, Utica (Patrick J. Marthage of Counsel), for Defendant–Appellant. Scott D. Mcnamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Frank J. Nebush, Jr., Public Defender, Utica (Patrick J. Marthage of Counsel), for Defendant–Appellant. Scott D. Mcnamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree (Penal Law § 215.51[b] [iii] ), defendant challenges the validity of his waiver of the right to appeal. We conclude that “County Court did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea” (People v. Bentley, 63 A.D.3d 1624, 1625, 879 N.Y.S.2d 790, lv. denied13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and that the record establishes that the court engaged defendant “in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Burt, 101 A.D.3d 1729, 1730, 955 N.Y.S.2d 906, lv. denied20 N.Y.3d 1060, 962 N.Y.S.2d 610, 985 N.E.2d 920 [internal quotation marks omitted] ). Defendant's valid waiver encompasses his challenge to the severity of the sentence ( see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416).
Although defendant's contentions that his plea was coerced and that he is innocent survive the valid waiver of the right to appeal ( see People v. Merritt, 115 A.D.3d 1250, 1251, 982 N.Y.S.2d 276; People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623), we conclude that those contentions are without merit. “The court was presented with a credibility determination when defendant moved to withdraw his plea and advanced his belated claims of innocence and coercion, and it did not abuse its discretion in discrediting those claims” (People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053). Indeed, we conclude that “defendant'sassertions of innocence and coercion were conclusory and belied by defendant's statements during the plea colloquy” (People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794, lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915; see People v. Allen, 99 A.D.3d 1252, 1252, 951 N.Y.S.2d 822).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.