Opinion
934 KA 17–00296
10-04-2019
The PEOPLE of the State of New York, Respondent, v. Daniel M. SWANK, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, 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 criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06[1] ). Contrary to defendant's contention, the record establishes that he knowingly, intelligently, and voluntarily waived his right to appeal, and that he understood that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ; People v. Moore, 158 A.D.3d 1312, 1312, 68 N.Y.S.3d 361 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ). The valid waiver of the right to appeal with respect to both the conviction and sentence encompasses defendant's contentions that County Court should have sentenced him to parole supervision pursuant to CPL 410.91 and that the sentence is unduly harsh and severe (see People v. Williams, 160 A.D.3d 1470, 1471, 72 N.Y.S.3d 906 [4th Dept. 2018] ; cf. People v. Copes, 145 A.D.3d 1639, 1639–1640, 44 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 1182, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017] ). Defendant's valid waiver of the right to appeal also encompasses his challenge to the court's suppression ruling (see Moore, 158 A.D.3d at 1312, 68 N.Y.S.3d 361 ; People v. Celi, 149 A.D.3d 1548, 1549, 51 N.Y.S.3d 452 [4th Dept. 2017], lv denied 29 N.Y.3d 1090, 63 N.Y.S.3d 7, 85 N.E.3d 102 [2017] ).
Finally, even assuming, arguendo, that defendant's contention that the proceedings were electronically recorded and later transcribed in violation of Judiciary Law § 295 survives both the guilty plea and waiver of the right to appeal (see People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638 [1995] ), that contention is unpreserved because defendant did not object to the use of the electronic recording device or the absence of a stenographer (see People v. Votra, 173 A.D.3d 1643, 1644, 102 N.Y.S.3d 373 [4th Dept. 2019] ; People v. Bennett, 165 A.D.3d 1624, 1625, 85 N.Y.S.3d 662 [4th Dept. 2018] ; People v. Rogers, 159 A.D.3d 1558, 1559, 72 N.Y.S.3d 758 [4th Dept. 2018], lv denied 31 N.Y.3d 1152, 83 N.Y.S.3d 434, 108 N.E.3d 508 [2018] ).