Opinion
1121 KA 17–00395
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Kenneth WARNER, Defendant–Appellant.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF COUNSEL), FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF COUNSEL), FOR DEFENDANT–APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted assault in the first degree ( Penal Law §§ 110.00, 120.10[1] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. The plea colloquy and the written waiver of the right to appeal, which defendant indicated that he had reviewed with his attorney and understood, demonstrate that he knowingly, intelligently and voluntarily waived the right to appeal (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.3d 980 [2018] ; People v. Farrara, 145 A.D.3d 1527, 1527, 42 N.Y.S.3d 915 [4th Dept. 2016], lv denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ; see also People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ). Contrary to defendant's contention, County Court "did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea" ( People v. Bentley, 63 A.D.3d 1624, 1625, 879 N.Y.S.2d 790 [4th Dept. 2009], lv denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009] ). The valid waiver of the right to appeal forecloses our review of defendant's contention that the sentence is unduly harsh and severe (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; Cochran, 156 A.D.3d at 1474, 65 N.Y.S.3d 894 ), as well as our review of his contention that the sentence constitutes cruel and unusual punishment (see People v. Santilli, 16 A.D.3d 1056, 1056–1057, 790 N.Y.S.2d 898 [4th Dept. 2005] ).
Even assuming, arguendo, that defendant preserved for our review his contention that his plea was not knowing, voluntary and intelligent (see People v. Thomas, [appeal No. 2], 23 A.D.3d 1156, 1156, 803 N.Y.S.2d 492 [4th Dept. 2005], lv denied 6 N.Y.3d 759, 810 N.Y.S.2d 427, 843 N.E.2d 1167 [2005] ), we conclude that defendant's contention is without merit. Although defendant initially denied committing the crime, upon further inquiry by the court he admitted that he discharged a weapon in another person's direction with the intention of causing serious physical injury to that person (see People v. Campbell, 256 A.D.2d 1112, 1112, 684 N.Y.S.2d 728 [4th Dept. 1998] ; People v. Brow, 255 A.D.2d 904, 905, 682 N.Y.S.2d 320 [4th Dept. 1998] ).