Opinion
689 KA 21-01272
09-29-2023
The PEOPLE of the State of New York, Respondent, v. Levert J. GILES, Defendant-Appellant.
HAYDEN M. DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
HAYDEN M. DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ), defendant contends that he did not validly waive his right to appeal. We reject that contention.
Here, the record establishes that defendant's waiver of the right to appeal was knowing, voluntary, and intelligent (see People v. Cunningham , 213 A.D.3d 1270, 1270, 182 N.Y.S.3d 459 [4th Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 845, 208 N.E.3d 73 [2023] ; see generally People v. Thomas , 34 N.Y.3d 545, 559-564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and we note that County Court used the appropriate model colloquy with respect to the waiver of the right to appeal (see generally Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Osgood , 210 A.D.3d 1426, 1427, 176 N.Y.S.3d 518 [4th Dept. 2022], lv denied 39 N.Y.3d 1079, 184 N.Y.S.3d 299, 204 N.E.3d 1080 [2023] ). Contrary to defendant's assertion, the court "made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Graham , 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490 [4th Dept. 2010], lv denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 [2010], quoting Lopez , 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Slishevsky , 149 A.D.3d 1488, 1489, 52 N.Y.S.3d 770 [4th Dept. 2017], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ). Defendant also asserts that he did not validly waive his right to appeal because the court listed several claims of error that would survive a valid waiver but failed to explain that the list was nonexhaustive and would also include any issue involving a right of a constitutional dimension that went to the very heart of the process. That assertion lacks merit. The record establishes that the court, following the model colloquy, explained that the listed issues were "[a]mong the limited number of claims" of error that would survive a valid waiver and, contrary to defendant's suggestion, "[n]o ‘particular litany’ is required for a waiver of the right to appeal to be valid" ( People v. Wood , 217 A.D.3d 1407, 1408, 190 N.Y.S.3d 761 [4th Dept. 2023], quoting Lopez , 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Parker , 151 A.D.3d 1876, 1876, 54 N.Y.S.3d 355 [4th Dept. 2017], lv denied 30 N.Y.3d 982, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] ). We thus conclude that defendant validly waived his right to appeal inasmuch as the record establishes that the court engaged defendant in "an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Brackett , 174 A.D.3d 1542, 1542, 103 N.Y.S.3d 898 [4th Dept. 2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019] [internal quotation marks omitted]).
Defendant's further contention that his plea was "not voluntarily entered because [he] provided only monosyllabic responses to [the court's] questions is actually a challenge to the factual sufficiency of the plea allocution" ( People v. Hendrix , 62 A.D.3d 1261, 1262, 878 N.Y.S.2d 532 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ), which is encompassed by the valid waiver of the right to appeal (see People v. Alsaifullah , 162 A.D.3d 1483, 1485, 77 N.Y.S.3d 811 [4th Dept. 2018], lv denied 32 N.Y.3d 1062, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018] ). Defendant's valid waiver of the right to appeal also encompasses his challenges to the court's suppression ruling (see People v. Sanders , 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Kemp , 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ) and to the severity of his sentence (see Lopez , 6 N.Y.3d at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Finally, we note that the plea proceeding and the sentence reflect defendant's status as a second felony drug offender ( Penal Law § 70.70 [1] [b] ), and the record thus confirms that the court merely misstated during sentencing that defendant was a second felony offender rather than a second felony drug offender (see People v. Bradley , 196 A.D.3d 1168, 1170-1171, 150 N.Y.S.3d 491 [4th Dept. 2021] ; People v. Feliciano , 108 A.D.3d 880, 881 n. 1, 969 N.Y.S.2d 221 [3d Dept. 2013], lv denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ). Inasmuch as the uniform sentence and commitment form incorrectly reflects that defendant was sentenced as a second felony offender, it must be amended to reflect that he was sentenced as a second felony drug offender (see Bradley , 196 A.D.3d at 1171, 150 N.Y.S.3d 491 ).