Opinion
477 KA 16–02341
05-03-2019
The PEOPLE of the State of New York, Respondent, v. Christopher ALFANO, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt 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 felony driving while intoxicated ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. The oral plea colloquy, together with the written waiver of the right to appeal executed by defendant, establishes that he knowingly, intelligently, and voluntarily waived his right to appeal, and that he understood that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ; People v. Livermore, 161 A.D.3d 1569, 1569, 76 N.Y.S.3d 732 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ; People v. Moore, 158 A.D.3d 1312, 1312, 68 N.Y.S.3d 361 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ). Contrary to defendant's contention, County Court " ‘inquire[d] of defendant whether he understood the written waiver’ " and ensured 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] ), and the court "was not required to specify during the colloquy which specific claims survive the waiver" ( People v. Rodriguez, 93 A.D.3d 1334, 1335, 940 N.Y.S.2d 508 [4th Dept. 2012], lv denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012] ; see Livermore, 161 A.D.3d at 1569, 76 N.Y.S.3d 732 ).
Defendant's remaining contentions are encompassed by his valid waiver of the right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).