Opinion
1406 KA 16–01000
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Asad R. HIXON, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RICHARD L. SULLIVAN OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RICHARD L. SULLIVAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It 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 one count of aggravated vehicular assault ( Penal Law § 120.04–a [4 ] ) and three counts of assault in the third degree (§ 120.00[2] ). The record establishes that defendant knowingly, intelligently, and voluntarily waived his right to appeal and that he understood that the right to appeal is separate and distinct from the rights automatically forfeited by a guilty plea (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ; People v. Blarr [Appeal No. 1], 149 A.D.3d 1606, 1606, 54 N.Y.S.3d 468 [4th Dept. 2017], lv denied 29 N.Y.3d 1123, 64 N.Y.S.3d 673, 86 N.E.3d 565 [2017] ). The valid waiver of the right to appeal encompasses defendant's challenges to the factual sufficiency of the plea allocution and the severity of the sentence (see People v. Johnson, 60 A.D.3d 1496, 1496, 876 N.Y.S.2d 282 [4th Dept. 2009], lv denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ).