Opinion
2012-06-8
The PEOPLE of the State of New York, Respondent, v. Benjamin FINCH, Defendant–Appellant.
James Dowsey, III, Ellicottville (Keliann M. Elniski of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
James Dowsey, III, Ellicottville (Keliann M. Elniski of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of arson in the third degree (Penal Law § 150.10 [1] ). We reject defendant's contention that County Court made an insufficient inquiry regarding his waiver of the right to appeal and thus that the waiver is invalid. “The court need not engage in any particular litany regarding a waiver of the right to appeal, so long as the court ‘make[s] certain that a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record’ ” ( People v. Miller, 87 A.D.3d 1303, 1303, 930 N.Y.S.2d 143,lv. denied18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, the record establishes that defendant's waiver of the right to appeal was knowing, intelligent, and voluntary ( see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;Miller, 87 A.D.3d at 1303, 930 N.Y.S.2d 143).
Defendant failed to preserve for our review his contention that his plea was not voluntarily entered “because ... he failed to move to withdraw the plea or to vacate the judgment of conviction” ( People v. Connolly, 70 A.D.3d 1510, 1511, 894 N.Y.S.2d 694,lv. denied 14 N.Y.3d 886, 903 N.Y.S.2d 775, 929 N.E.2d 1010). In any event, that contention lacks merit. The record of the plea colloquy establishes that defendant stated that he understood the nature of the rights that he was relinquishing by pleading guilty, that he had not been coerced into entering the plea, and that he was not promised anything in exchange for his guilty plea. Indeed, he expressly stated that he was entering the plea voluntarily after having sufficient time to consult with his attorney. “[T]he record [thus] establishes that defendant understood the nature and consequences of his actions” ( People v. Watkins, 77 A.D.3d 1403, 1403–1404, 909 N.Y.S.2d 233,lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327). Defendant's challenge to the validity of his waiver of his Miranda rights is encompassed by his waiver of the right to appeal ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;People v. Mitchell, 93 A.D.3d 1173, 1174, 940 N.Y.S.2d 393).
Finally, we agree with defendant that his challenge to the jurisdictional requirements of the waiver of indictment and the superior court information need not be preserved for our review ( see People v. Boston, 75 N.Y.2d 585, 589 n., 555 N.Y.S.2d 27, 554 N.E.2d 64; People v. Waid, 26 A.D.3d 734, 734–735, 809 N.Y.S.2d 330,lv. denied6 N.Y.3d 839, 814 N.Y.S.2d 87, 847 N.E.2d 384), and that his challenge is not precluded by his valid waiver of the right to appeal ( see Waid, 26 A.D.3d at 734–735, 809 N.Y.S.2d 330;People v. Verrone, 266 A.D.2d 16, 18, 698 N.Y.S.2d 8). Nevertheless, we conclude that defendant's contention lacks merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.