Opinion
859 KA 14-00978
07-02-2015
The PEOPLE of The State of New York, Respondent, v. Richard A. Bizardi, Defendant–Appellant.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Jeffrey A. Domachowski of Counsel), for Respondent.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant.
Jon E. Budelmann, District Attorney, Auburn (Jeffrey A. Domachowski of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, VALENTINO, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). Contrary to defendant's contention, we conclude that he knowingly, intelligently, and voluntarily waived his right to appeal as a condition of the plea (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). County Court “engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice ..., and the record establishes that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Burts, 114 A.D.3d 1272, 1273, 980 N.Y.S.2d 862, lv. denied 22 N.Y.3d 1197, 986 N.Y.S.2d 418, 9 N.E.3d 913 [internal quotation marks omitted] ). Contrary to defendant's contention, the court “was not required to specify during the colloquy which specific claims survive the waiver of the right to appeal” (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 ). Defendant's contention that the court erred in denying his request for a Wade hearing is encompassed by the valid waiver (see People v. Jenkins, 117 A.D.3d 1528, 1529, 985 N.Y.S.2d 372, lv. denied 23 N.Y.3d 1063, 994 N.Y.S.2d 322, 18 N.E.3d 1143 ).
Although defendant's contention that his guilty plea was not knowing, voluntary, and intelligent survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review by moving to withdraw his plea or to vacate the judgment of conviction (see People v. Robinson, 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529, lv. denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 ), and this case does not fall within the rare exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.