Opinion
1202 KA 12-01366
11-14-2014
The PEOPLE of the State of New York, Respondent, v. Terrence DAMES, 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: SMITH, J.P., CENTRA, FAHEY, LINDLEY, and WHALEN, JJ.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ). Contrary to defendant's contention, his waiver of the right to appeal was knowingly, voluntarily, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Barber, 117 A.D.3d 1430, 1430, 984 N.Y.S.2d 754 ; People v. Durodoye, 113 A.D.3d 1130, 1131, 977 N.Y.S.2d 640 ). The record establishes that “defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Barber, 117 A.D.3d at 1430, 984 N.Y.S.2d 754 ). Although defendant's contention that his guilty plea was not knowing, voluntary, and intelligent survives the waiver of the right to appeal and is preserved for our review by his motion to withdraw the plea (cf. id. at 1430–1431, 984 N.Y.S.2d 754 ), it is without merit. His assertions at sentencing that he was innocent, under duress, and coerced into taking the plea were belied by the statements he made during the plea colloquy (see People v. Leach, 119 A.D.3d 1429, 1430, 989 N.Y.S.2d 761 ; People v. Williams, 90 A.D.3d 1546, 1547, 934 N.Y.S.2d 900, lv. denied 19 N.Y.3d 978, 950 N.Y.S.2d 361, 973 N.E.2d 771 ). The valid waiver by defendant of the right to appeal encompasses his challenges to the severity of the sentence (see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.