Opinion
71 KA 17–00596
02-07-2020
The PEOPLE of the State of New York, Respondent, v. Kira KASTENHUBER, Defendant–Appellant.
EMILY P. TROTT, BUFFALO, FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, SPECIAL DISTRICT ATTORNEY, BATAVIA, AND NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., ALBANY (KAREN FISHER MCGEE OF COUNSEL), FOR RESPONDENT.
EMILY P. TROTT, BUFFALO, FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, SPECIAL DISTRICT ATTORNEY, BATAVIA, AND NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., ALBANY (KAREN FISHER MCGEE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of murder in the second degree ( Penal Law § 125.25 [1] ). We agree with the People that the record establishes that defendant validly waived her right to appeal. 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. Suttles, 107 A.D.3d 1467, 1468, 965 N.Y.S.2d 904 [4th Dept. 2013], lv denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] [internal quotation marks omitted] ). In addition, defendant's oral waiver of the right to appeal was accompanied by a written waiver stating, inter alia, that her appellate rights were fully explained to her by the court and defense counsel (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ). Defendant's valid waiver of the right to appeal forecloses her challenges to the court's suppression ruling (see People v. Gibson, 147 A.D.3d 1507, 1508, 47 N.Y.S.3d 612 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ; People v. Braxton, 129 A.D.3d 1674, 1675, 10 N.Y.S.3d 791 [4th Dept. 2015], lv denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] ).
Finally, defendant's contention that she was denied effective assistance of counsel "does not survive [her] guilty plea or [her] waiver of the right to appeal because there was no showing 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. Ayala, 117 A.D.3d 1447, 1448, 984 N.Y.S.2d 764 [4th Dept. 2014], lv denied 23 N.Y.3d 1033, 993 N.Y.S.2d 247, 17 N.E.3d 502 [2014] [internal quotation marks omitted] ).