Opinion
09-29-2017
The PEOPLE of the State of New York, Respondent, v. Scott W. DAVIS, Defendant–Appellant.
Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant. Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant.
Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of burglary in the first degree ( Penal Law § 140.30[2] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. 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. Bridges, 144 A.D.3d 1582, 1582, 40 N.Y.S.3d 825, lv. denied 28 N.Y.3d 1143, 52 N.Y.S.3d 294, 74 N.E.3d 679 ), and that he had " ‘a full appreciation of the consequences' " of the waiver ( People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Contrary to defendant's contention, there is no requirement that the colloquy concerning the waiver of the right to appeal precede the factual plea allocution (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ). In light of the court's adequate colloquy, we conclude that defendant validly waived his right to appeal, and that such valid waiver encompasses his challenge to the severity of the sentence (see People v. Morales, 148 A.D.3d 1638, 1639, 51 N.Y.S.3d 298, lv. denied 29 N.Y.3d 1083, –––N.Y.S.3d ––––, ––– N.E.3d ––– –; see also People v. Lopez, 6 N.Y.3d 248, 255–256, 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 ).
Although defendant's contentions concerning the validity of the orders of protection issued at sentencing survive his waiver of the right to appeal in this case (see People v. Russell, 120 A.D.3d 1594, 1594, 992 N.Y.S.2d 822, lv. denied 24 N.Y.3d 1046, 998 N.Y.S.2d 316, 23 N.E.3d 159 ; see also People v. Victor, 20 A.D.3d 927, 928, 799 N.Y.S.2d 843, lv. denied 5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747, reconsideration denied 5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486 ), he did not preserve those contentions for our review by challenging the issuance of the orders of protection (see People v. Nieves, 2 N.Y.3d 310, 315–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. Smith, 122 A.D.3d 1420, 1421, 996 N.Y.S.2d 853, lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 ; Russell, 120 A.D.3d at 1594–1595, 992 N.Y.S.2d 822 ; see also People v. Collins, 117 A.D.3d 1535, 1535, 985 N.Y.S.2d 373, lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346, reconsideration denied 24 N.Y.3d 1218, 4 N.Y.S.3d 607, 28 N.E.3d 43 ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, and WINSLOW, JJ., concur.