Opinion
105406.
2015-04-16
The PEOPLE of the State of New York, Respondent, v. James DONAH, Appellant.
McCarthy, J.P., Garry, Egan Jr. and Lynch, JJ., concur.
M. Elizabeth Coreno, Saratoga Springs, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered March 5, 2012 in Clinton County, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
Defendant waived indictment and, in satisfaction of a superior court information, pleaded guilty to burglary in the third degree and waived his right to appeal. He thereafter was sentenced as a second felony offender to the agreed-upon prison term of 2 to 4 years. Defendant now appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal is valid. Supreme Court distinguished the right to appeal from those rights automatically forfeited by defendant's guilty plea, and defendant executed a written waiver in open court. Accordingly, defendant knowingly, voluntarily and intelligently waived his right to appeal his conviction and sentence ( see People v. Oginski, 123 A.D.3d 1303, 1303, 996 N.Y.S.2d 799 [2014]; People v. Dyckman, 114 A.D.3d 994, 995, 979 N.Y.S.2d 872 [2014], lv. denied23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ). Given defendant's valid waiver of appeal, his challenge to the severity of the sentence is precluded ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Fate, 117 A.D.3d 1327, 1329, 986 N.Y.S.2d 672 [2014], lv. denied24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 [2014]; People v. White, 96 A.D.3d 1299, 1300, 946 N.Y.S.2d 717 [2012], lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012] ).
ORDERED that the judgment is affirmed.