Opinion
11-10-2016
The PEOPLE of the State of New York, Respondent, v. Kelly L. MARSHALL, Defendant–Appellant.
Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke of Counsel), for Defendant–Appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:On appeal from a judgment convicting her upon her plea of guilty of murder in the second degree (Penal Law § 125.25[3] ) and robbery in the first degree (§ 160.15[3] ), defendant contends that her waiver of the right to appeal is invalid. We reject that contention. Although the form notice signed by defendant recited, among other things, that she had the right to appeal, that form notice does not constitute a proper written waiver of the right to appeal (see 22 NYCRR 1022.11 [a]; People v. Finster, 136 A.D.3d 1279, 1280, 24 N.Y.S.3d 540, lv. denied 27 N.Y.3d 1132, 39 N.Y.S.3d 113, 61 N.E.3d 512 ). We nonetheless conclude that “[t]he plea allocution as a whole establishes that defendant's waiver of the right to appeal was knowing, intelligent, and voluntary” (People v. Brown, 281 A.D.2d 962, 962, 723 N.Y.S.2d 301, lv. denied 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84 ; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Contrary to defendant's contention, County Court “did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea” (People v. Bentley, 63 A.D.3d 1624, 1625, 879 N.Y.S.2d 790, lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 ), and we conclude that the record establishes that the 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. Ripley, 94 A.D.3d 1554, 1554, 942 N.Y.S.2d 919, lv. denied 19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769 [internal quotation marks omitted] ). 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 Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), as well as our review of her contention that the sentence constitutes cruel and unusual punishment (see People v. Santilli, 16 A.D.3d 1056, 1056–1057, 790 N.Y.S.2d 898 ; People v. Brathwaite, 263 A.D.2d 89, 92, 703 N.Y.S.2d 191 ).It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.