Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Eduardo BURTES, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Valerie G. Gardner, District Attorney, Penn Yan (David G. Mashewske of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
Valerie G. Gardner, District Attorney, Penn Yan (David G. Mashewske of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of grand larceny in the third degree ( Penal Law § 155.35[1] ). Contrary to defendant's contention, we conclude that the record establishes that County Court "conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Davis, 129 A.D.3d 1613, 1613, 11 N.Y.S.3d 778, lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [internal quotation marks omitted] ), and that "[t]he ‘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. Williams, 132 A.D.3d 1291, 1291, 17 N.Y.S.3d 360, lv. denied 26 N.Y.3d 1151, 32 N.Y.S.3d 65, 51 N.E.3d 576 ; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Contrary to defendant's further 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 "his plea was not knowing, intelligent and voluntary ‘because he did not recite the underlying facts of the crime but simply replied to [the court's] questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution,’ which is encompassed by the valid waiver of the right to appeal" ( People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489, lv. denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 ). Defendant's further contention that his plea was not knowing, intelligent and voluntary because the court was unclear in reciting the value of the stolen property "is actually an additional challenge to the factual sufficiency of the plea allocution, and that challenge also does not survive his valid waiver of the right to appeal" ( People v. Daniels, 59 A.D.3d 943, 943, 872 N.Y.S.2d 335, lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 ; see People v. Copp, 78 A.D.3d 1548, 1549, 910 N.Y.S.2d 798, lv. denied 16 N.Y.3d 797, 919 N.Y.S.2d 513, 944 N.E.2d 1153 ). In addition, defendant contends that his plea was involuntary because he stated that he was dependent on narcotic pain medication and expressed uncertainty about his understanding of the proceedings, and the court failed to conduct a sufficient inquiry to ensure that the plea was voluntary. Although that contention survives the waiver of the right to appeal, defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Feliz, 70 A.D.3d 1355, 1356, 894 N.Y.S.2d 637, lv. denied 14 N.Y.3d 887, 903 N.Y.S.2d 775, 929 N.E.2d 1010 ; People v. Brown, 305 A.D.2d 1068, 1068–1069, 759 N.Y.S.2d 830, lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 ). In any event, that contention lacks merit. The record establishes that the court conducted a sufficient inquiry to ensure that the plea was voluntary, and defendant responded that he had not taken any narcotic pain medication for nearly two weeks prior to the plea and that he understood the proceedings (see People v. Rosado, 70 A.D.3d 1315, 1316, 894 N.Y.S.2d 703, lv. denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 ; People v. Zulian, 68 A.D.3d 1731, 1732, 891 N.Y.S.2d 821, lv. denied 14 N.Y.3d 894, 903 N.Y.S.2d 783, 929 N.E.2d 1018 ).
Finally, defendant's valid waiver of the right to appeal encompasses his challenges to the court's suppression ruling (see People v. Sanders, 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ), and to the severity of his sentence (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; Davis, 129 A.D.3d at 1615, 11 N.Y.S.3d 778 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ).It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.