Opinion
No. 656 KA 23-00553
11-15-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TERELL E. ROLFE, DEFENDANT-APPELLANT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. ANTHONY J. DIMARTINO, JR., DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
ANTHONY J. DIMARTINO, JR., DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, OGDEN, NOWAK, AND KEANE, JJ.
Appeal from a judgment of the Oswego County Court (Karen M. Brandt Brown, J.), rendered March 10, 2022. The judgment convicted defendant upon his plea of guilty of robbery in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robbery in the second degree (Penal Law § 160.10 [2] [a]), defendant contends that his sentence is unduly harsh and severe and that the waiver of the right to appeal does not foreclose his challenge to the severity of his sentence. Here, the record establishes that defendant's waiver of the right to appeal was knowing, voluntary, and intelligent (see People v Giles, 219 A.D.3d 1706, 1706 [4th Dept 2023], lv denied 40 N.Y.3d 1039 [2023]; see generally People v Thomas, 34 N.Y.3d 545, 559-564 [2019], cert denied __ U.S. __, 140 S.Ct. 2634 [2020]; People v Lopez, 6 N.Y.3d 248, 256 [2006]), and we note that County Court used the appropriate model colloquy with respect to the waiver of the right to appeal (see generally Thomas, 34 N.Y.3d at 567; Giles, 219 A.D.3d at 1706; People v Osgood, 210 A.D.3d 1426, 1427 [4th Dept 2022], lv denied 39 N.Y.3d 1079 [2023]). We thus conclude that defendant validly waived his right to appeal inasmuch as the record establishes that the court engaged defendant in "an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (Giles, 219 A.D.3d at 1707 [internal quotation marks omitted]). Defendant's valid waiver of the right to appeal precludes our review of his challenge to the severity of his sentence (see Lopez, 6 N.Y.3d at 255).
Defendant contends for the first time on appeal that the court improperly ordered him to pay restitution to the victim in the absence of proof in the record to support the amount of restitution, and thus his contention is not preserved for our review (see CPL 470.05 [2]; People v Rodriguez, 173 A.D.3d 1840, 1841 [4th Dept 2019], lv denied 34 N.Y.3d 953 [2019]; People v Connors, 91 A.D.3d 1340, 1341-1342 [4th Dept 2012], lv denied 18 N.Y.3d 956 [2012]).