Opinion
662 KA 18–01093
10-09-2020
The PEOPLE of the State of New York, Respondent, v. Steven CROMIE, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of five counts of possessing a sexual performance by a child ( Penal Law § 263.16 ). We reject defendant's contention that his waiver of the right to appeal is invalid. Contrary to defendant's contention, County Court's oral colloquy amply established that the right to appeal was "separate and distinct" from those rights automatically forfeited by pleading guilty ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Bryant , 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ) and did not "utterly mischaracterize[ ] the nature of the right ... defendant was being asked to cede" ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [Mar. 30, 2020] [internal quotation marks omitted] ). Indeed, we note with approval the court's reliance on the Model Colloquy, which "neatly synthesizes ... the governing principles" regarding the waiver of the right to appeal ( id. at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal). Additionally, the court informed defendant, before he entered his plea, "that the waiver would be a condition of the plea, and ... the court assured itself prior to the completion of the plea proceeding ... that defendant adequately understood the right that [he] was forgoing" ( People v. Love , 179 A.D.3d 1541, 1542, 118 N.Y.S.3d 872 [4th Dept. 2020], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 638, 149 N.E.3d 399 [2020] [internal quotation marks omitted]; see generally People v. Bradshaw , 18 N.Y.3d 257, 264-265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ).
Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez , 6 N.Y.3d at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).