Opinion
2014-03-28
The PEOPLE of the State of New York, Respondent, v. Gerald R. KROUTH, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Gerald R. Krouth, Defendant–Appellant Pro Se.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Gerald R. Krouth, Defendant–Appellant Pro Se.
Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, and VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65[3] ), defendant contends that his waiver of the right to appeal is unenforceable and that Supreme Court erred in denying his motion to suppress identification testimony from the child victim. We conclude that the waiver of the right to appeal is enforceable and that it therefore precludes defendant from challenging the court's suppression ruling. “A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, the 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” ( People v. James, 71 A.D.3d 1465, 1465, 898 N.Y.S.2d 391 [internal quotation marks omitted]; cf. People v. Adger, 83 A.D.3d 1590, 1591, 921 N.Y.S.2d 436,lv. denied17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803), and informed him that the waiver was a condition of the plea agreement ( cf. People v. Williams, 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334,lv. denied10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413). The record also establishes that defendant “indicated that he had spoken with defense counsel and understood that he was waiving his right to appeal as a condition of the plea” ( People v. Dunham, 83 A.D.3d 1423, 1424, 919 N.Y.S.2d 258,lv. denied17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097). Finally, the court made clear to defendant that the right to appeal was separate and distinct from the rights automatically forfeited upon plea ( see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;see also People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645).
We note in any event that the court properly denied defendant's suppression motion pursuant to People v. Gee, 286 A.D.2d 62, 72–73, 730 N.Y.S.2d 810,affd.99 N.Y.2d 158, 753 N.Y.S.2d 19, 782 N.E.2d 1155,rearg. denied99 N.Y.2d 652, 760 N.Y.S.2d 105, 790 N.E.2d 279.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.