Opinion
622 KA 18–00518
06-14-2019
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, 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 assault in the first degree ( Penal Law § 120.10 [1 ] ), assault in the second degree (§ 120.05[2] ), and criminal possession of a weapon in the fourth degree (§ 265.01[2] ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). County Court did not conflate the general, unrestricted waiver of the right to appeal with those rights automatically forfeited by a guilty plea and expressly advised defendant that the waiver included any challenge to the severity of the negotiated sentence (see People v. McMorris, 151 A.D.3d 1779, 1779, 53 N.Y.S.3d 870 [4th Dept. 2017], lv denied 29 N.Y.3d 1130, 86 N.E.3d 572 [2017] ). Moreover, "the record establishes that defendant reviewed the written waiver of the right to appeal with his attorney, stated that he understood it completely, and had no questions for the court with respect to it" ( People v. Gebreyesus, 133 A.D.3d 1365, 1366, 19 N.Y.S.3d 460 [4th Dept. 2015], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ). Defendant's valid waiver of the right to appeal forecloses any challenge by defendant to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ).