Opinion
1453 KA 17–00187
02-08-2019
The PEOPLE of the State of New York, Respondent, v. Anthony WATSON, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP 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 (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt 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 robbery in the third degree ( Penal Law § 160.05 ). Contrary to defendant's contention, his waiver of the right to appeal is valid (see generally People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). The record establishes that defendant had " ‘a full appreciation of the consequences’ of such waiver" ( Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ) inasmuch as Supreme Court "provided defendant with an extensive and detailed description of the proposed waiver of the right to appeal" and ascertained his understanding thereof ( People v. Thomas, 158 A.D.3d 1191, 1191, 67 N.Y.S.3d 878 [4th Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ; see People v. Walker, 151 A.D.3d 1765, 1765, 53 N.Y.S.3d 855 [4th Dept. 2017], lv denied 30 N.Y.3d 954, 67 N.Y.S.3d 138, 89 N.E.3d 528 [2017] ; People v. Verse, 61 A.D.3d 1409, 1409, 877 N.Y.S.2d 564 [4th Dept. 2009], lv denied 12 N.Y.3d 930, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009] ). Contrary to defendant's further contention, as we have repeatedly stated, "a waiver of the right to appeal [is] not rendered invalid based on [a] court's failure to require [the] defendant to articulate the waiver in his [or her] own words" ( People v. Gast, 114 A.D.3d 1270, 1270, 980 N.Y.S.2d 221 [4th Dept. 2014], lv denied 22 N.Y.3d 1198, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014] [internal quotation marks omitted]; see e.g. People v. Scott, 144 A.D.3d 1597, 1597, 40 N.Y.S.3d 689 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ; People v. Dozier, 59 A.D.3d 987, 987, 872 N.Y.S.2d 317 [4th Dept. 2009], lv denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931 [2009] ).
Defendant contends that the court abused its discretion in denying his motion to withdraw his plea of guilty, which was premised on his allegations that he was under the influence of recently prescribed pain medication that affected his ability to understand the plea proceeding and that the plea was therefore not knowing, intelligent and voluntary. Although that contention survives defendant's valid waiver of the right to appeal (see People v. Davis, 129 A.D.3d 1613, 1614, 11 N.Y.S.3d 778 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ), we conclude that his contention lacks merit. Defendant, in response to the court's inquiry during the plea proceeding, denied that he had "any drugs or alcohol or substances like that in [his] system" (see People v. Feliz, 70 A.D.3d 1355, 1356, 894 N.Y.S.2d 637 [4th Dept. 2010], lv denied 14 N.Y.3d 887, 903 N.Y.S.2d 775, 929 N.E.2d 1010 [2010] ; People v. Spikes, 28 A.D.3d 1101, 1102, 813 N.Y.S.2d 602 [4th Dept. 2006], lv denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809 [2006] ), and his contention is further "belied by the record of the plea proceeding, which establishes that defendant's factual allocution was lucid and detailed and that defendant understood both the nature of the proceedings and that he was [forfeiting and] waiving various rights" ( People v. Hayes, 39 A.D.3d 1173, 1175, 834 N.Y.S.2d 784 [4th Dept. 2007], lv denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 [2007] ; see Davis, 129 A.D.3d at 1614, 11 N.Y.S.3d 778 ).
Finally, defendant's challenge to the severity of the enhanced sentence imposed as a result of his postplea conduct is not encompassed by his valid waiver of the right to appeal inasmuch as the court "failed to advise defendant prior to his waiver of the potential period of incarceration that could be imposed for an enhanced sentence" ( People v. Tyo, 140 A.D.3d 1697, 1699, 31 N.Y.S.3d 732 [4th Dept. 2016], lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 24, 73 N.E.3d 364 [2016] [internal quotation marks omitted]; see People v. Scott, 101 A.D.3d 1773, 1774, 957 N.Y.S.2d 554 [4th Dept. 2012], lv denied 21 N.Y.3d 1019, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013] ). We conclude, however, that the sentence is not unduly harsh or severe.