Opinion
711 KA 16–02262
06-08-2018
The PEOPLE of the State of New York, Respondent, v. Lester SCARBROUGH, Defendant–Appellant.
ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT–APPELLANT. LESTER SCARBROUGH, DEFENDANT–APPELLANT PRO SE. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT–APPELLANT.
LESTER SCARBROUGH, DEFENDANT–APPELLANT PRO SE.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, 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 attempted rape in the first degree ( Penal Law §§ 110.00, 130.35[1] ). Contrary to defendant's contention in his main and pro se supplemental briefs, we conclude that his waiver of the right to appeal is valid (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). "The ‘plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Williams, 132 A.D.3d 1291, 1291, 17 N.Y.S.3d 360 [4th Dept. 2015], lv denied 26 N.Y.3d 1151, 32 N.Y.S.3d 65, 51 N.E.3d 576 [2016] ; see People v. Weinstock, 129 A.D.3d 1663, 1663, 11 N.Y.S.3d 782 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ; People v. Smith, 122 A.D.3d 1300, 1301, 995 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015] ). Defendant's challenge in his main and pro se supplemental briefs to the legal sufficiency of the evidence before the grand jury does not survive either his guilty plea (see People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Oswold, 151 A.D.3d 1756, 1756–1757, 55 N.Y.S.3d 568 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ), or his valid waiver of the right to appeal (see People v. Oliveri, 49 A.D.3d 1208, 1208, 856 N.Y.S.2d 354 [4th Dept. 2008] ). Defendant's contention in his main and pro se supplemental briefs that defense counsel was ineffective for failing to afford him an opportunity to testify before the grand jury and for failing to conduct a thorough investigation also does not survive either his guilty plea or his valid waiver of the right to appeal (see People v. Grandin, 63 A.D.3d 1604, 1604, 880 N.Y.S.2d 826 [4th Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ). We further conclude that defendant's valid waiver of the right to appeal encompasses his challenge in his main and pro se supplemental briefs to the severity of the sentence (see People v. Cochran, 156 A.D.3d 1474, 1474, 65 N.Y.S.3d 894 [4th Dept. 2017], lv denied 30 N.Y.3d 1114, 77 N.Y.S.3d 339, 101 N.E.2d 980 [2018] ; People v. Oberdorf, 136 A.D.3d 1291, 1292, 24 N.Y.S.3d 545 [4th Dept. 2016], lv denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ).