Opinion
2014-07-11
The PEOPLE of the State of New York, Respondent, v. Melissa COTTON, Defendant–Appellant.
Nancy J. Bizub, Buffalo, for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.
Nancy J. Bizub, Buffalo, for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY AND VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting her upon her plea of guilty of robbery in the second degree (Penal Law § 160.10[1] ), defendant contends that her waiver of the right to appeal is invalid because it was not knowingly, voluntarily, and intelligently entered. The record demonstrates, however, that County Court engaged defendant “in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. Burt, 101 A.D.3d 1729, 1730, 955 N.Y.S.2d 906,lv. denied20 N.Y.3d 1060, 962 N.Y.S.2d 610, 985 N.E.2d 920 [internal quotation marks omitted] ), and that, during the plea colloquy, the court properly described “ ‘the nature of the right being waived without lumping that right into the panoply of trial rights automatically forfeited upon pleading guilty’ ” ( People v. Tabb, 81 A.D.3d 1322, 1322, 916 N.Y.S.2d 567,lv. denied16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983, quoting People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;see People v. Harris, 94 A.D.3d 1484, 1485, 942 N.Y.S.2d 854,lv. denied19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211). Defendant also signed a written waiver of the right to appeal ( see People v. Pulley, 107 A.D.3d 1560, 1561, 966 N.Y.S.2d 709,lv. denied21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150). We conclude that defendant's “responses during the plea colloquy and [her] execution of a written waiver of the right to appeal establish that [s]he intelligently, knowingly, and voluntarily waived [her] right to appeal” ( People v. Rumsey, 105 A.D.3d 1448, 1449, 963 N.Y.S.2d 909,lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397;see generally Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and that valid waiver forecloses any challenge by defendant to the severity of her sentence ( see Lopez, 6 N.Y.3d at 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;People v. Washington, 117 A.D.3d 1416, 1416, 984 N.Y.S.2d 627).
Finally, defendant's contention that she was denied effective assistance of counsel does not survive her plea or her valid waiver of the right to appeal inasmuch as defendant “failed to demonstrate that ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [her] attorney['s] allegedly poor performance’ ” ( People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794,lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915;see People v. Rizek [Appeal No. 1], 64 A.D.3d 1180, 1180, 881 N.Y.S.2d 752,lv. denied13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.