Opinion
25 KA 13-01467.
02-05-2016
The PEOPLE of the State of New York, Respondent, v. Cynthia L. OBERDORF, 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 (Brian D. Dennis 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 (Brian D. Dennis of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting her, upon her plea of guilty, of one count of criminal sale of a controlled substance in the second degree (Penal Law § 220.411 ) and three counts of criminal sale of a controlled substance in the third degree (§ 220.391 ). Contrary to the contention of defendant, her waiver of the right to appeal was knowingly, intelligently and voluntarily entered inasmuch as County Court's lengthy colloquy about the waiver established that defendant understood the terms and conditions of the plea agreement, and “[t]he record ... establish[es] that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Any alleged deficiencies in the written waiver of the right to appeal, which was executed at the time of sentencing, are of no moment where, as here, there is an otherwise valid oral waiver of the right to appeal (see People v. Handly, 122 A.D.3d 1007, 1008, 995 N.Y.S.2d 415; 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).
The further contention of defendant that the plea was not knowingly, intelligently and voluntarily entered owing to the manner in which the plea allocution was conducted is, in effect, “a challenge to the factual sufficiency of the plea allocution and thus is encompassed by the valid waiver of the right to appeal” (People v. Brown, 66 A.D.3d 1385, 1385, 885 N.Y.S.2d 660, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566; see People v. Korber, 89 A.D.3d 1543, 1543, 932 N.Y.S.2d 780, lv. denied 19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436). “Moreover, defendant failed to preserve that contention for our review inasmuch as [s]he failed to move to withdraw the plea or to vacate the judgment of conviction” (Korber, 89 A.D.3d at 1543, 932 N.Y.S.2d 780; see People v. Lewis, 114 A.D.3d 1310, 1311, 980 N.Y.S.2d 231, lv. denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915).
Although defendant also contends that the bargained-for sentence is unduly harsh and severe, “[t]he valid waiver of the right to appeal encompasses defendant's challenge to the severity of the bargained-for sentence” (People v. Smith, 37 A.D.3d 1141, 1142, 829 N.Y.S.2d 375, lv. denied 9 N.Y.3d 851, 840 N.Y.S.2d 777, 872 N.E.2d 890, reconsideration denied 9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900; see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). We note, however, that both the certificate of conviction and the uniform sentence and commitment form should be amended because they incorrectly reflect that defendant was sentenced as a second felony offender when she was actually sentenced as a second felony drug offender (see People v. Labaff, 127 A.D.3d 1471, 1472, 7 N.Y.S.3d 682, lv. denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840; People v. Easley, 124 A.D.3d 1284, 1285, 1 N.Y.S.3d 640, lv. denied 25 N.Y.3d 1200, 16 N.Y.S.3d 523, 37 N.E.3d 1166).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., CENTRA, PERADOTTO, CARNI, and SCUDDER, JJ., concur.