Opinion
KA 16–01944 126
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Dyllan M. COATS, Defendant–Appellant.
DANIEL M. GRIEBEL, TONAWANDA, FOR DEFENDANT–APPELLANT. KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT, FOR RESPONDENT.
DANIEL M. GRIEBEL, TONAWANDA, FOR DEFENDANT–APPELLANT.
KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT, FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him, upon his plea of guilty, of grand larceny in the fourth degree ( Penal Law § 155.30[4] ), criminal possession of stolen property in the fourth degree (§ 165.45[2] ), and burglary in the second degree(§ 140.25[2] ). We agree with defendant that his waiver of the right to appeal is not valid. "Although the drug court contract [signed by defendant] contained a written waiver of the right to appeal, County Court did not conduct any colloquy concerning that waiver at the plea proceeding ..., and we conclude that the contract alone is insufficient to establish a valid waiver" ( People v. Mason, 144 A.D.3d 1589, 1589, 40 N.Y.S.3d 694 [4th Dept. 2016], lv denied 28 N.Y.3d 1186, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017]; see People v. Sampson, 149 A.D.3d 1486, 1487, 52 N.Y.S.3d 767 [4th Dept. 2017] ).
Nevertheless, we affirm. Defendant's contention that counts of the superior court information were improperly joined in a single accusatory instrument does not survive his plea of guilty inasmuch as "[a] guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings" ( People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ). Defendant's contention that his challenge with respect to improper joinder survives his plea of guilty because the superior court information was jurisdictionally defective is without merit inasmuch as each count therein charges an "offense for which the defendant was held for action of a grand jury"( CPL 195.20 ; cf. People v. Pierce, 14 N.Y.3d 564, 574, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010] ).
The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.