Opinion
875 KA 16–00200
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Kenneth J. TIDD, II, also known as Kenneth Tidd, II, also known as Kenneth J. Tidd, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN, ALBION, OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN, ALBION, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 criminal sexual act in the first degree ( Penal Law § 130.50[3] ), defendant contends that his waiver of the right to appeal is invalid because it was not knowingly, voluntarily, and intelligently entered. We reject that contention. The record establishes that County Court engaged defendant "in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Carr, 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] [internal quotation marks omitted]; see People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). In addition, the plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant 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 [2006] ; see People v. Gibson, 147 A.D.3d 1507, 1507, 47 N.Y.S.3d 612 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ; see generally People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ). Defendant's valid waiver of the right to appeal forecloses his challenges to the severity of the sentence and the factual sufficiency of the plea allocution (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; Simcoe, 74 A.D.3d at 1859, 902 N.Y.S.2d 489.
By failing to move to withdraw the plea or vacate the judgment of conviction, defendant failed to preserve for our review his contention that his plea was involuntary because it was entered too early in the prosecution to allow him sufficient time to consider the plea (see People v. Brown, 9 A.D.3d 884, 885, 779 N.Y.S.2d 683 [4th Dept. 2004], lv denied 3 N.Y.3d 671, 784 N.Y.S.2d 9, 817 N.E.2d 827 [2004] ). This case does not fall within the rare exception to the preservation requirement because the plea colloquy did not "clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea" ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).
We reject defendant's final contention that the court should have sua sponte ordered a competency evaluation pursuant to CPL article 730. " ‘There is no evidence in the record that would have warranted the court to question defendant's competency or ability to understand the nature of the proceedings or the charge[ ]’ " ( People v. Padilla, 151 A.D.3d 1700, 1701, 57 N.Y.S.3d 288 [4th Dept. 2017], lv denied 31 N.Y.3d 1016, 78 N.Y.S.3d 286, 102 N.E.3d 1067 [2018] ).