Opinion
775 KA 18–00695
09-27-2019
The PEOPLE of the State of New York, Respondent, v. Michael LABADEE, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, 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 him upon his plea of guilty of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ). We reject defendant's contention that he did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Garrett , 167 A.D.3d 1586, 1586, 88 N.Y.S.3d 385 [4th Dept. 2018] ; see generally People v. Lopez , 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Contrary to defendant's contentions, the record establishes that County Court " ‘did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea’ " ( People v. Bray , 170 A.D.3d 1538, 1538, 94 N.Y.S.3d 532 [4th Dept. 2019], lv denied 33 N.Y.3d 1066, 105 N.Y.S.3d 53, 129 N.E.3d 373 [2019] ; see People v. Alfano , 172 A.D.3d 1920, 1921, 97 N.Y.S.3d 919 [4th Dept. 2019], lv denied 33 N.Y.3d 1101, 106 N.Y.S.3d 658, 130 N.E.3d 1268 [2019] ), and "the court ‘was not required to specify during the colloquy which specific claims survive the waiver of the right to appeal’ " ( People v. Livermore , 161 A.D.3d 1569, 1569, 76 N.Y.S.3d 732 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ). The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentence (see People v. McArthur , 149 A.D.3d 1568, 1568–1569, 52 N.Y.S.3d 600 [4th Dept. 2017] ; see generally People v. Lococo , 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 [1998] ; People v. Hidalgo , 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ).
Defendant contends that his plea was not knowing, intelligent, and voluntary because he simply responded "yes" and "no" to many of the court's questions. That contention is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by the valid waiver of the right to appeal (see People v. Pryce , 148 A.D.3d 1625, 1625–1626, 51 N.Y.S.3d 737 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017]; People v. Simcoe , 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). In any event, defendant did not preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction (see Livermore , 161 A.D.3d at 1570, 76 N.Y.S.3d 732 ), and this case does not fall within the narrow exception to the preservation rule (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).