Opinion
112 KA 17–00357
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Michael W. JOHNSON, Defendant–Appellant. (Appeal No. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, 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 two counts of robbery in the second degree ( Penal Law § 160.10[2][b] ). We reject defendant's contention that the waiver of the right to appeal is not valid. Supreme 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. Marshall, 144 A.D.3d 1544, 1545, 41 N.Y.S.3d 337 [4th Dept. 2016] [internal quotation marks omitted] ). Defendant's contention that the court should have explained that certain issues survive a waiver of the right to appeal is without merit inasmuch as " ‘[n]o particular litany is required for an effective waiver of the right to appeal’ " ( People v. Fisher, 94 A.D.3d 1435, 1435, 942 N.Y.S.2d 837 [4th Dept. 2012], lv denied 19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012] ; see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ; People v. Durodoye, 113 A.D.3d 1130, 1131, 977 N.Y.S.2d 640 [4th Dept. 2014] ). The valid waiver of the right to appeal forecloses our review of defendant's contention that the sentence is unduly harsh and severe (see generally People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ). Defendant's challenge to the legality of a resentence imposed on a violation of probation is not properly before us because defendant did not take an appeal from the resentence (see People v. Kuras, 49 A.D.3d 1196, 1197, 852 N.Y.S.2d 907 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008] ).