Opinion
1516 KA 16–00158
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Bryant CUNNINGHAM, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY 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 (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25[2] ), criminal contempt in the second degree (§ 215.50[3] ), and tampering with a witness in the fourth degree (§ 215.10[a] ). The conviction arises from an incident in which defendant broke into the home of his former girlfriend in violation of an order of protection and threatened to distribute nude photographs of her if she testified against him in a Town Court proceeding related to an earlier alleged assault of her by defendant.
Contrary to defendant's contention, the record establishes that he made a knowing, intelligent and voluntary waiver of his right to appeal (see People v. Walker, 151 A.D.3d 1730, 1730, 57 N.Y.S.3d 806 [4th Dept. 2017], lv denied 29 N.Y.3d 1135, 64 N.Y.S.3d 685, 86 N.E.3d 577 [2017], reconsideration denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ; People v. Harris [appeal No. 4], 147 A.D.3d 1375, 1376, 47 N.Y.S.3d 540 [4th Dept. 2017], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017] ; see generally People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). We reject defendant's contention that the explanations of the waiver provided to him by Supreme Court were confusing (see Walker, 151 A.D.3d at 1731, 57 N.Y.S.3d 806 ; see also People v. Ramos, 135 A.D.3d 1234, 1235, 23 N.Y.S.3d 479 [3d Dept. 2016], lv denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83[2016] ), and there is no indication in the record that he was confused when he waived his right to appeal (see generally People v. DeFazio, 105 A.D.3d 1438, 1439, 963 N.Y.S.2d 497 [4th Dept. 2013], lv denied 21 N.Y.3d 1015, 971 N.Y.S.2d 497, 994 N.E.2d 393 [2013] ).
Defendant's valid waiver of his right to appeal with respect to both his conviction and his sentence forecloses his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; Walker, 151 A.D.3d at 1731, 57 N.Y.S.3d 806 ).
Finally, defendant contends that the court erred in calculating the expiration date of the order of protection entered against him. Given that defendant expressly acknowledged that his waiver of the right to appeal would extend to "any orders of protection that were issued as to form, duration or content," we conclude that the waiver encompasses his contention that the order's expiration date is incorrect (see People v. Fontaine, 144 A.D.3d 1658, 1658–1659, 42 N.Y.S.3d 493 [4th Dept. 2016], lv denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.