Opinion
1192 KA 16–02291
02-08-2019
The PEOPLE of the State of New York, Respondent, v. John S. HINES, Also Known as Dance, John, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON 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 three counts each of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). 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] ). Supreme 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 "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. Massey, 149 A.D.3d 1524, 1525, 53 N.Y.S.3d 766 [4th Dept. 2017], amended on rearg on other grounds 151 A.D.3d 1969, 59 N.Y.S.3d 233 [4th Dept. 2017], lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] [internal quotation marks omitted] ). Defendant's contention that his plea was not knowingly, voluntarily, and intelligently entered because he did not recite the elements of the crimes and replied only "yes" or "no" to many of the court's questions is actually a challenge to the factual sufficiency of the plea allocution, which is foreclosed by defendant's valid waiver of the right to appeal (see People v. Livermore , 161 A.D.3d 1569, 1569, 76 N.Y.S.3d 732 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ; Massey, 149 A.D.3d at 1525, 53 N.Y.S.3d 766 ). 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 ).