Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Michael HAND, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for defendant-appellant. Valerie G. Gardner, District Attorney, Penn Yan (Lora J. Tryon 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 (Lora J. Tryon of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree (Penal Law §§ 110.00, 130.35[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 "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (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 contentions, his " ‘monosyllabic affirmative responses to questioning by [the c]ourt do not render his [waiver] unknowing and involuntary’ " (People v. Harris, 94 A.D.3d 1484, 1485, 942 N.Y.S.2d 854, lv. denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 ), and 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 ; see People v. Kosty, 122 A.D.3d 1408, 1408, 996 N.Y.S.2d 449, lv. denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 ). 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 c]ourt'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 ). Finally, defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Davis, 129 A.D.3d at 1615, 11 N.Y.S.3d 778 ; see generally Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., SMITH, PERADOTTO, DeJOSEPH, and CURRAN, JJ., concur.