Opinion
954 KA 17–00745
10-04-2019
The PEOPLE of the State of New York, Respondent, v. Lamar G. SHARPE, Defendant–Appellant.
EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, 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 burglary in the first degree ( Penal Law § 140.30[4] ) and robbery in the first degree (§ 160.15[4] ). Contrary to defendant's contention, the record establishes that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Bryant , 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ; People v. Joubert , 158 A.D.3d 1314, 1315, 68 N.Y.S.3d 375 [4th Dept. 2018], lv denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018] ; People v. Slishevsky , 149 A.D.3d 1488, 1488–1489, 52 N.Y.S.3d 770 [4th Dept. 2017], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ), that he understood that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty (see Bryant , 28 N.Y.3d at 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; Joubert , 158 A.D.3d at 1315, 68 N.Y.S.3d 375 ; Slishevsky , 149 A.D.3d at 1489, 52 N.Y.S.3d 770 ), and that his waiver of the right to appeal was a condition of the bargained-for plea deal, not a consequence thereof (see Slishevsky , 149 A.D.3d at 1489, 52 N.Y.S.3d 770 ). We note that defendant's oral waiver of the right to appeal was supplemented by a valid written waiver executed by defendant, which Supreme Court adequately discussed at the plea colloquy by "inquir[ing] of defendant whether he understood the written waiver," and ensuring that "he had ... read the waiver before signing it" ( 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] ).
We further conclude that the valid waiver of the right to appeal encompasses defendant's remaining contention (see generally People v. Lopez , 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).