Opinion
67 KA 17–00729
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Keith O. MORRISON, Defendant–appellant.
CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.
CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, BANNISTER, AND DEJOSEPH, 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 criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16[1] ). Contrary to his contention and the People's incorrect concession (see People v. Berrios, 28 N.Y.2d 361, 366–367, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971] ; People v. Adair, 177 A.D.3d 1357, 1357, 2019 WL 6042384 [4th Dept. 2019] ), the record establishes that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Hoke, 167 A.D.3d 1549, 1549–1550, 90 N.Y.S.3d 452 [4th Dept. 2018], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 206, 123 N.E.3d 865 [2019] ; People v. Robinson, 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529 [4th Dept. 2013], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014] ). The valid waiver of the right to appeal encompasses defendant's challenge to the severity of his sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).