Opinion
904 KA 16-01270.
06-30-2017
The PEOPLE of the State of New York, Respondent, v. Erika BROWN, Defendant–Appellant.
Kathryn Friedman, Buffalo, for Defendant–Appellant. John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
Kathryn Friedman, Buffalo, for Defendant–Appellant.
John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon her plea of guilty of two counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and one count of criminal possession of a controlled substance in the third degree (§ 220.16 [1] ). At the outset, we conclude that defendant knowingly, voluntarily and intelligently waived her right to appeal, and that waiver encompasses her challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The further contention of defendant that the sentence is illegal, however, survives her waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Bussom, 125 A.D.3d 1331, 1331, 1 N.Y.S.3d 726 ). Nevertheless, contrary to defendant's contention, we conclude that County Court imposed a legal sentence.
To the extent that defendant contends that the plea was not knowing, voluntary and intelligent because the court failed to conduct a sufficient inquiry to determine whether she understood the consequences of the plea, that contention also survives her valid waiver of the right to appeal (see People v. Green, 122 A.D.3d 1342, 1343, 995 N.Y.S.2d 897 ; People v. Povoski, 78 A.D.3d 1533, 1533, 910 N.Y.S.2d 618, lv. denied 16 N.Y.3d 799, 919 N.Y.S.2d 516, 944 N.E.2d 1156 ). Defendant's contention, however, is not preserved for our review because she did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Hough, 148 A.D.3d 1671, 1671, 51 N.Y.S.3d 272 ; People v. Brinson, 130 A.D.3d 1493, 1493, 11 N.Y.S.3d 788, lv. denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 ). We conclude in any event that defendant's contention is "belied by [her] statements during the plea colloquy" ( People v. Rickard, 262 A.D.2d 1073, 1073, 691 N.Y.S.2d 811, lv. denied 94 N.Y.2d 828, 702 N.Y.S.2d 599, 724 N.E.2d 391 ; see People v. Hampton, 142 A.D.3d 1305, 1306–1307, 38 N.Y.S.3d 319, lv. denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 ; People v. Caldwell, 78 A.D.3d 1562, 1563, 910 N.Y.S.2d 740, lv. denied 16 N.Y.3d 796, 919 N.Y.S.2d 513, 944 N.E.2d 1153 ). The record reveals that an interpreter was present throughout the plea proceeding, and defendant "acknowledged, through the interpreter, that [she] understood the terms of the plea bargain and that [she] willingly accepted them" ( People v. Mercedes, 171 A.D.2d 1044, 1044, 579 N.Y.S.2d 601, lv. denied 77 N.Y.2d 998, 571 N.Y.S.2d 923, 575 N.E.2d 409 ; see People v. Martes, 154 A.D.2d 946, 946, 545 N.Y.S.2d 885, lv. denied 75 N.Y.2d 870, 553 N.Y.S.2d 301, 552 N.E.2d 880 ; People v. Quezada, 145 A.D.2d 950, 951, 536 N.Y.S.2d 617 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.