Opinion
292 KA 13-01227.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Ryan S. SMITH, Defendant–Appellant.
Patricia M. McGrath, Lockport, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Patricia M. McGrath, Lockport, for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, five counts of burglary in the first degree (Penal Law § 140.30[2]–[4] ) and seven counts of robbery in the first degree (§ 160.15[1], [3], [4] ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). There is no support in the record for defendant's contention that his waiver of the right to appeal was the result of coercion, “particularly considering [County C]ourt's thorough colloquy,” the extensive consultations between defendant and defense counsel regarding the waiver, and defendant's affirmative statement that his agreement to the waiver was voluntary (People v. Hayes, 71 A.D.3d 1187, 1188, 896 N.Y.S.2d 225, lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821, reconsideration denied 15 N.Y.3d 921, 913 N.Y.S.2d 647, 939 N.E.2d 813, citing People v. Holman, 89 N.Y.2d 876, 878, 653 N.Y.S.2d 93, 675 N.E.2d 847 ). Here, “[t]here was no effort to conceal error and defendant was fully aware of what the appealable issues were” (Holman, 89 N.Y.2d at 878, 653 N.Y.S.2d 93, 675 N.E.2d 847 ). In addition, defendant obtained a favorable bargain by waiving his right to appeal as a condition of his plea inasmuch as he significantly limited his sentencing exposure (see People v. Evans, 59 A.D.3d 216, 216–217, 873 N.Y.S.2d 60, lv. denied 12 N.Y.3d 816, 881 N.Y.S.2d 23, 908 N.E.2d 931 ).
“The valid waiver by defendant of the right to appeal encompasses his contention that the court erred in denying his pre-plea recusal motion” (People v. Thorn, 298 A.D.2d 900, 901, 747 N.Y.S.2d 839, lv. denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579 ). Contrary to defendant's further contention, that waiver also encompasses his challenge to the court's order compelling him to provide a buccal swab for DNA analysis (see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Rodriguez, 93 A.D.3d 1334, 1335, 940 N.Y.S.2d 508, lv.
denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 ) and, in any event, that challenge is forfeited by his plea of guilty (see People v. Tehoke, 6 A.D.3d 1173, 1174, 775 N.Y.S.2d 694 ; see generally People v. Hansen, 95 N.Y.2d 227, 230–232, 715 N.Y.S.2d 369, 738 N.E.2d 773 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.