Opinion
18 KA 22-00429
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Lawrence HAWKINS, Defendant-Appellant.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, 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 attempted assault in the first degree ( Penal Law §§ 110.00, 120.10 [1] ), defendant contends that his sentence is unduly harsh and severe and that the waiver of the right to appeal does not foreclose his challenge to the severity of his sentence. Here, the record establishes that defendant's waiver of the right to appeal was knowing, voluntary, and intelligent (see People v. Giles , 219 A.D.3d 1706, 1706, 197 N.Y.S.3d 778 [4th Dept. 2023], lv denied 40 N.Y.3d 1039, 200 N.Y.S.3d 771, 223 N.E.3d 1247 [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 ; Giles , 219 A.D.3d at 1706, 197 N.Y.S.3d 778 ; 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] ). 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" ( Giles , 219 A.D.3d at 1707, 197 N.Y.S.3d 778 [internal quotation marks omitted]). Defendant's valid waiver of the right to appeal precludes our review of his challenge to the severity of his sentence (see Lopez , 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).