Opinion
09-29-2017
The PEOPLE of the State of New York, Respondent, v. Keith A. TONEY, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.39[1] ). We reject defendant's contention that he did not knowingly waive his right to appeal. County Court " expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal" ( People v. McCrea, 140 A.D.3d 1655, 1655, 32 N.Y.S.3d 778, lv. denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [internal quotation marks omitted] ) and, contrary to defendant's contention, the record establishes that the court did not conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea (see id. ). The court also specifically explained that the waiver included any challenge to the severity of the sentence, thereby foreclosing any such challenge on appeal (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Defendant further contends that his plea was not knowingly, intelligently, and voluntarily entered. Although a challenge to the voluntariness of the plea survives a valid waiver of the right to appeal (see People v. Shaw, 133 A.D.3d 1312, 1313, 19 N.Y.S.3d 449,
lv. denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 ), defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Garcia–Cruz, 138 A.D.3d 1414, 1414–1415, 30 N.Y.S.3d 427, lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 ; see generally People v. Wisniewski, 128 A.D.3d 1481, 1481, 8 N.Y.S.3d 539, lv. denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 ). In any event, defendant's " ‘yes' and ‘no’ answers during the plea colloqu[y] do not invalidate his guilty plea[ ]" ( People v. Russell, 133 A.D.3d 1199, 1199, 20 N.Y.S.3d 760, lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 ; see People v. Alicea, 148 A.D.3d 1662, 1663, 51 N.Y.S.3d 744, lv. denied 29 N.Y.3d 1122, – ––N.Y.S.3d ––––, ––– N.E.3d –––– [Aug. 3, 2017]; People v. Dunham, 83 A.D.3d 1423, 1424, 919 N.Y.S.2d 258, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.SMITH, J.P., DeJOSEPH, CURRAN, TROUTMAN, and WINSLOW, JJ., concur.