Opinion
1187 KA 16–01505
02-08-2019
The PEOPLE of the State of New York, Respondent, v. Lamar FEDDIMAN, Defendant–Appellant.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE 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 (DAVID A. COOKE OF COUNSEL), FOR DEFENDANT–APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree ( Penal Law § 160.10 [2 ][b] ). We reject defendant's contention that his waiver of the right to appeal was not knowing, voluntary, and intelligent (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). County 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] ), and we conclude that "[t]he ‘plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Williams, 132 A.D.3d 1291, 1291, 17 N.Y.S.3d 360 [4th Dept. 2015], lv denied 26 N.Y.3d 1151, 32 N.Y.S.3d 65, 51 N.E.3d 576 [2016] ). Defendant's contention that his plea was not knowingly, voluntarily, or intelligently entered because he did not specify when or where the crime occurred is actually a challenge to the factual sufficiency of the plea allocution (see People v. Loper, 118 A.D.3d 1394, 1394–1395, 988 N.Y.S.2d 744 [4th Dept. 2014], lv denied 25 N.Y.3d 1204, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ) and thus is encompassed by the valid waiver of the right to appeal (see People v. Schmidli, 118 A.D.3d 1491, 1491, 987 N.Y.S.2d 540 [4th Dept. 2014], lv denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147 [2014] ). The valid waiver of the right to appeal also forecloses defendant's challenge to the severity of his sentence (see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).