Opinion
1280 KA 18–01034
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Joshua D. BIASELLI, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, 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 driving while intoxicated, as a class E felony ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ). Although we agree with defendant "that the written waiver of the right to appeal does not establish a valid waiver because [County] Court ‘did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it’ " ( People v. Brackett, 174 A.D.3d 1542, 1542, 103 N.Y.S.3d 898 [4th Dept. 2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019], quoting People v. Bradshaw, 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; see People v. Saeli, 136 A.D.3d 1290, 1291, 24 N.Y.S.3d 544 [4th Dept. 2016] ), we conclude that defendant's oral waiver of the right to appeal was knowingly, intelligently, and voluntarily entered (see Brackett, 174 A.D.3d at 1542, 103 N.Y.S.3d 898 ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). The court engaged defendant in " ‘an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ " ( Brackett, 174 A.D.3d at 1542, 103 N.Y.S.3d 898 ; see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Defendant's contention that the waiver was invalid because he simply answered "yes" to the court's explanation is without merit inasmuch as "a waiver of the right to appeal [is] not rendered invalid based on [a] court's failure to require [the] defendant to articulate the waiver in his [or her] own words" ( People v. Watson, 169 A.D.3d 1526, 1527, 93 N.Y.S.3d 507 [4th Dept. 2019], lv denied 33 N.Y.3d 982, 101 N.Y.S.3d 246, 124 N.E.3d 735 [2019] [internal quotation marks omitted] ).
Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ). Defendant's further contention that the court did not adhere to its promise not to impose the maximum sentence survives defendant's waiver of the right to appeal but is not preserved for our review (see People v. Feher, 165 A.D.3d 1610, 1610–1611, 85 N.Y.S.3d 656 [4th Dept. 2018], lv denied 32 N.Y.3d 1171, 97 N.Y.S.3d 631, 121 N.E.3d 259 [2019] ). In any event, defendant's contention is without merit. The court's statements regarding sentencing were made at the conclusion of the plea proceeding, after defendant had pleaded guilty and the court had accepted that plea, and they did not change the terms of the plea agreement, which included no sentencing promise. Defendant's remaining contentions, to the extent they are not encompassed by the waiver of the right to appeal, are not preserved for our review (see CPL 470.05[2] ; see generally People v. Howland, 130 A.D.3d 1105, 1106, 13 N.Y.S.3d 613 [4th Dept. 2015], lv denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).