Opinion
1302 KA 17–02145
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Harold OLIVER, Defendant–Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT–APPELLANT. MARK S. SINKIEWICZ, ACTING DISTRICT ATTORNEY, WATERLOO (MELISSA K. SWARTZ OF COUNSEL), FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT–APPELLANT.
MARK S. SINKIEWICZ, ACTING DISTRICT ATTORNEY, WATERLOO (MELISSA K. SWARTZ OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, TROUTMAN, AND BANNISTER, 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 forgery in the second degree ( Penal Law § 170.10 [1] ). Contrary to defendant's contention, we conclude that his waiver of the right to appeal is valid (see People v. Yates, 173 A.D.3d 1849, 1849, 103 N.Y.S.3d 728 [4th Dept. 2019] ; People v. Smith, 164 A.D.3d 1621, 1621–1622, 84 N.Y.S.3d 287 [4th Dept. 2018], lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 608, 121 N.E.3d 235 [2019] ). Here, County Court engaged defendant in a sufficient colloquy to ascertain that defendant's waiver of the right to appeal was made knowingly, intelligently, and voluntarily (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
We further conclude that, "[a]lthough a valid waiver of the right to appeal would not preclude defendant's challenge to the voluntariness of his plea, defendant failed to preserve that challenge for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction" ( People v. Mobayed, 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; see People v. Cruz, 81 A.D.3d 1300, 1301, 916 N.Y.S.2d 555 [4th Dept. 2011], lv denied 17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096 [2011] ). Contrary to defendant's contention, this is not the "rare case in which the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon [his] guilt or otherwise calls into question the voluntariness of the plea," and thus the exception to the preservation rule does not apply ( Mobayed, 158 A.D.3d at 1222, 70 N.Y.S.3d 267 [internal quotation marks omitted]; see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Insofar as defendant also contests the factual sufficiency of the plea colloquy, that contention is encompassed by his valid waiver of the right to appeal (see People v. Oswold, 151 A.D.3d 1756, 1756, 55 N.Y.S.3d 568 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ).
Finally, defendant's valid waiver of the right to appeal forecloses his challenge to the severity of the sentence (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).