Opinion
599 KA 16–02362
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Thomas MURPHY, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, 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 manslaughter in the first degree ( Penal Law § 125.20[1] ) and arson in the second degree (§ 150.15). Contrary to defendant's contention, we conclude that " ‘[t]he plea colloquy and the written waiver of the right to appeal signed [and acknowledged in County Court] by defendant demonstrate that [he] knowingly, intelligently and voluntarily waived the right to appeal, including the right to appeal the severity of the sentence’ " ( People v. Weber, 169 A.D.3d 1372, 1372–1373, 91 N.Y.S.3d 751 [4th Dept. 2019], lv denied 33 N.Y.3d 982, 101 N.Y.S.3d 262, 124 N.E.3d 751, 2019 WL 2071101 [Apr. 30, 2019] ). Defendant's valid waiver of the right to appeal forecloses his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). We note that the certificate of conviction incorrectly reflects that defendant was convicted of manslaughter in the first degree under Penal Law § 120.20(1), and it must therefore be amended to reflect that he was convicted under Penal Law § 125.20(1) (see People v. Saxton, 32 A.D.3d 1286, 1286–1287, 821 N.Y.S.2d 353 [4th Dept. 2006] ).