Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Ronald WALKER, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.
John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree ( Penal Law § 140.25[2] ). The conviction arises from an incident in which defendant broke into the home of his former girlfriend in violation of a stay-away order of protection and allegedly threatened to kill her while armed with a kitchen knife.
Contrary to defendant's contention, the record establishes that he made a knowing, intelligent, and voluntary waiver of his right to appeal (see People v. Harris [Appeal No. 4], 147 A.D.3d 1375, 1376, 47 N.Y.S.3d 540 ; People v. Johnson, 125 A.D.3d 1419, 1419–1420, 3 N.Y.S.3d 225, lv. denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 ; see generally People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The fact that Supreme Court did not specifically explain that even a legal sentence may be challenged on appeal does not impair the scope or validity of the waiver, inasmuch as there is "no requirement that [a] defendant expressly waive every potential claim or defense ... in order to produce a valid, unrestricted waiver of the right to appeal" ( People v. Corbin, 121 A.D.3d 803, 804, 993 N.Y.S.2d 746 ; see People v. Muniz, 91 N.Y.2d 570, 574–575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ).
Although the presentence report reflects that defendant has cognitive limitations, there is no indication in the record that he "was uninformed, confused or incompetent when he waived his right to appeal" ( People v. DeFazio, 105 A.D.3d 1438, 1439, 963 N.Y.S.2d 497, lv. denied 21 N.Y.3d 1015, 971 N.Y.S.2d 497, 994 N.E.2d 393 [internal quotation marks omitted]; see People v. Scott, 144 A.D.3d 1597, 1598, 40 N.Y.S.3d 689, lv. denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 ; see also People v. Andrews, 274 A.D.2d 670, 670, 711 N.Y.S.2d 797, lv. denied 95 N.Y.2d 960, 722 N.Y.S.2d 477, 745 N.E.2d 397 ), and we reject his contention that the explanations of the waiver provided to him were themselves inconsistent or confusing (see People v. Ramos, 135 A.D.3d 1234, 1235, 23 N.Y.S.3d 479, lv. denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 ; People v. Reinhardt, 82 A.D.3d 1592, 1593, 919 N.Y.S.2d 412, lv. denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 ; see also People v. Yaw, 120 A.D.3d 1447, 1448–1449, 991 N.Y.S.2d 677, lv. denied 24 N.Y.3d 1005, 997 N.Y.S.2d 123, 21 N.E.3d 575 ).
Defendant's valid waiver of his right to appeal with respect to both his conviction and sentence forecloses his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Carr, 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 ). In addition, given that defendant expressly acknowledged that his waiver of the right to appeal would extend to "any orders of protection that are issued as to form, duration, or content," we conclude that the waiver encompasses his contention that the no-contact order of protection issued in favor of the victim is "unduly stringent" (see People v. Fontaine, 144 A.D.3d 1658, 1658–1659, 42 N.Y.S.3d 493 ; cf. People v. Lilley, 81 A.D.3d 1448, 1448, 917 N.Y.S.2d 494, lv. denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 ). In any event, although the victim asked the court to issue only a no-offensive-contact order of protection, we conclude that the court did not err in issuing a no-contact order (see People v. Richardson, 134 A.D.3d 1566, 1567, 21 N.Y.S.3d 916, lv. denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 ). Finally, defendant contends that the court erred at sentencing because it did not "fairly consider the option of issuing a no-offensive-contact order of protection." Even assuming, arguendo, that his contention survives his waiver of the right to appeal and does not require preservation (see generally People v. Halston, 37 A.D.3d 1144, 1145, 829 N.Y.S.2d 380, lv. denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664 ), we conclude that it is not supported by the record (see generally People v. Vasquez, 131 A.D.3d 1076, 1077, 16 N.Y.S.3d 464, lv. denied 26 N.Y.3d 1151, 32 N.Y.S.3d 65, 51 N.E.3d 576 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.