Opinion
2012-04-20
The PEOPLE of the State of New York, Respondent, v. Enrique C. RUSH, Defendant–Appellant.
Appeal from a judgment of the Niagara County Court (Mark A. Violante, A.J.), rendered December 10, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the second degree.David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for defendant–appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for respondent.
Appeal from a judgment of the Niagara County Court (Mark A. Violante, A.J.), rendered December 10, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the second degree.David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for defendant–appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the second degree (Penal Law §§ 110.00, 130.30[1] ). We reject defendant's contention that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently entered ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). “ County Court expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea” ( People v. Thompson, 83 A.D.3d 1535, 1535, 921 N.Y.S.2d 577 [internal quotation marks omitted]; see People v. Harris, 77 A.D.3d 1326, 907 N.Y.S.2d 893, lv. denied 16 N.Y.3d 743, 917 N.Y.S.2d 625, 942 N.E.2d 1050). “ ‘The valid waiver of the right to appeal encompasses defendant's contention concerning the [ultimate] denial of his request for youthful offender status' ” ( People v. Lyons, 86 A.D.3d 930, 931, 926 N.Y.S.2d 255, lv. denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029; see Harris, 77 A.D.3d 1326, 907 N.Y.S.2d 893), as well as his contention concerning the severity of the sentence ( see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; Lyons, 86 A.D.3d at 931, 926 N.Y.S.2d 255).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.