Opinion
1478 KA 15–02154
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Luis COLON, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and attempted assault in the first degree (§§ 110.00, 120.10[1] ). County Court "expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea" ( People v. McCrea, 140 A.D.3d 1655, 1655, 32 N.Y.S.3d 778 [4th Dept. 2016], lv denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] [internal quotation marks omitted]; see People v. Toney, 153 A.D.3d 1583, 1583, 60 N.Y.S.3d 898 [4th Dept. 2017] ). The court also specifically explained that the waiver included defendant's right to appeal his "conviction and sentence," thereby foreclosing defendant's challenge to the severity of his sentence (see Toney, 153 A.D.3d at 1583, 60 N.Y.S.3d 898 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.