Opinion
11-17-2017
The PEOPLE of the State of New York, Respondent, v. Jerry T. SADDLER, Jr., Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:On appeal from a judgment convicting him, upon his plea of guilty, of criminal contempt in the first degree ( Penal Law § 215.51 [b][v] ), defendant contends that his waiver of the right to appeal is invalid because it was not knowingly, voluntarily, and intelligently entered. We reject that contention. It is well settled that a "court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). To the contrary, a court need only make "certain that ... defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record" (id.). Here, the record establishes that County 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. Carr, 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 [4th Dept.2017], lv. denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] [internal quotation marks omitted] ). In addition, the plea colloquy, together with the written waiver of the right to appeal (see People v. Gibson, 147 A.D.3d 1507, 1507, 47 N.Y.S.3d 612 [4th Dept.2017], lv. denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ; see generally People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ), adequately apprised defendant that "the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see Carr, 147 A.D.3d at 1506, 47 N.Y.S.3d 561).
The valid waiver of the right to appeal with respect to both the conviction and the sentence forecloses defendant's challenge to the severity of his sentence (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; Carr, 147 A.D.3d at 1506, 47 N.Y.S.3d 561; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). Furthermore, although defendant purports to challenge the legality of the sentence, "when the label defendant assigned to his appellate claim is disregarded and the actual gist of the claim is examined, it is apparent that his challenge is addressed not to the legality of the sentence on its face, or even to the power of the court to impose the ... sentence it chose" ( People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). Here, upon examining the core of defendant's contention, we conclude that he is "essentially challenging the procedure pursuant to which he was sentenced as [a second felony offender]" ( People v. Adams, 64 A.D.3d 1186, 1187, 881 N.Y.S.2d 751 [4th Dept.2009], lv. denied 13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 [2009] ; see People v. Carney, 129 A.D.3d 1511, 1511, 10 N.Y.S.3d 377 [4th Dept.2015], lv. denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016] ), and his "valid waiver of his right to appeal precludes review of his claim that the procedure used to adjudicate him a second felony offender was defective" ( People v. Kosse, 94 A.D.3d 908, 908, 941 N.Y.S.2d 847 [2d Dept.2012], lv. denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012] ; see People v. Holmes, 122 A.D.3d 770, 770, 994 N.Y.S.2d 866 [2d Dept.2014], lv. denied 24 N.Y.3d 1219, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.