Opinion
2014-07-3
The PEOPLE of the State of New York, Respondent, v. Richard KESICK, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY AND SCONIERS, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the third degree (Penal Law § 155.35[1] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. County Court “engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice ..., and the record establishes that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Burts, 114 A.D.3d 1272, 1273, 980 N.Y.S.2d 862,lv. denied22 N.Y.3d 1197, 986 N.Y.S.2d 418, 9 N.E.3d 913 [internal quotation marks omitted]; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Hicks, 89 A.D.3d 1480, 1480–1481, 932 N.Y.S.2d 412,lv. denied18 N.Y.3d 924, 942 N.Y.S.2d 463, 965 N.E.2d 965). We thus conclude that “[the plea colloquy and the written waiver of the right to appeal signed [and acknowledged in court] by defendant demonstrate that [he] knowingly, intelligently and voluntarily waived the right to appeal” ( People v. Colucci, 94 A.D.3d 1418, 1419, 942 N.Y.S.2d 394,lv. denied19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209;see People v. Pulley, 107 A.D.3d 1560, 1561, 966 N.Y.S.2d 709,lv. denied21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150;People v. Rumsey, 105 A.D.3d 1448, 1449, 963 N.Y.S.2d 909,lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397).
Contrary to defendant's further contention, the valid waiver of the right to appeal encompasses his challenge to the severity of the sentence, including the imposition and amount of restitution, the terms of which were made a part of the plea agreement ( see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Graves, 96 A.D.3d 1466, 1466, 945 N.Y.S.2d 910,lv. denied19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111;People v. Butler, 81 A.D.3d 1465, 1465, 916 N.Y.S.2d 875,lv. denied17 N.Y.3d 805, 929 N.Y.S.2d 564, 953 N.E.2d 802).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.