Opinion
11-10-2016
The PEOPLE of the State of New York, Respondent, v. Dakota J. LYNN, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting her, upon her plea of guilty, of two felony counts of falsifying business records in the first degree (Penal Law § 175.10 ), and two misdemeanor counts of petit larceny (§ 155.25 ). Contrary to defendant's contention, the record establishes that County Court “engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Ripley, 94 A.D.3d 1554, 1554, 942 N.Y.S.2d 919, lv. denied 19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769 [internal quotation marks omitted]; see People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), and the court did not conflate the waiver of the right to appeal with the rights defendant was automatically forfeiting upon her plea (see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; Ripley, 94 A.D.3d at 1554, 942 N.Y.S.2d 919 ). We reject defendant's contention that her waiver of the right to appeal is invalid because the court did not explain exceptions to the waiver (see People v. Bizardi, 130 A.D.3d 1492, 1492, 12 N.Y.S.3d 480, lv. denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 ; People v. Kosty, 122 A.D.3d 1408, 1408, 996 N.Y.S.2d 449, lv. denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 ), or ensure that a written waiver was obtained (see People v. Oberdorf, 136 A.D.3d 1291, 1292, 24 N.Y.S.3d 545, lv. denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 ; People v. Irvine, 42 A.D.3d 949, 949–950, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615 ).
Defendant further contends that the court erred in refusing to suppress her statement to the police because she was questioned in a secured office complex and was never given her Miranda rights. That contention does not survive the valid waiver of the right to appeal (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Carpenter, 13 A.D.3d 1193, 1193, 786 N.Y.S.2d 683, lv. denied 4 N.Y.3d 797, 795 N.Y.S.2d 172, 828 N.E.2d 88 ).
Defendant contends that she did not knowingly, voluntarily, and intelligently enter her plea of guilty inasmuch as the court failed to ensure that she had a full understanding of her plea as evidenced by her “yes” or “no” answers and lack of narrative responses. That contention, however, is a challenge to the factual sufficiency of the plea allocution and thus “is encompassed by [the] valid waiver of the right to appeal” (Kosty, 122 A.D.3d at 1408, 996 N.Y.S.2d 449 ; see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; Irvine, 42 A.D.3d at 950, 838 N.Y.S.2d 765 ).
Defendant also contends that she “substantially complied” with the terms and conditions of her interim probation and that the court therefore should have permitted her, in accordance with her plea agreement, to withdraw her guilty plea with respect to the two felony counts. That contention is without merit (see People v. Gibson, 52 A.D.3d 1227, 1227, 859 N.Y.S.2d 821 ). At the time of the plea, the court conditioned vacatur of that part of the guilty plea covering the two felony counts upon, inter alia, defendant's successful completion of interim probation. It is undisputed, however, that defendant failed to complete interim probation successfully. We conclude that the “summary hearing conducted by the court was sufficient pursuant to CPL 400.10(3) to enable the court to ‘assure itself that the information’ ” upon which it was basing its determination that defendant failed to complete interim probation successfully, as well as the sentence to be imposed on defendant, was “ ‘reliable and accurate’ ” (People v. Rollins, 50 A.D.3d 1535, 1536, 856 N.Y.S.2d 417, lv. denied 10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 ; see People v. Wissert, 85 A.D.3d 1633, 1633–1634, 924 N.Y.S.2d 909, lv. denied 17 N.Y.3d 956, 936 N.Y.S.2d 82, 959 N.E.2d 1031 ; see also Gibson, 52 A.D.3d at 1227, 859 N.Y.S.2d 821 ).
Finally, defendant contends that the bargained-for sentence is unduly harsh and severe. We note that the court indicated at the time of sentencing that defendant could appeal the sentence. We nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.