Opinion
505 KA 16–02285
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Kenneth WILLIAMS, Defendant–Appellant.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him upon his plea of guilty of two counts of attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03[3] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. The record establishes that Supreme Court "conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Davis, 129 A.D.3d 1613, 1613, 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] [internal quotation marks omitted] ), and that "[t]he ‘plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Williams, 132 A.D.3d 1291, 1291, 132 A.D.3d 1291 [4th Dept. 2015], lv denied 26 N.Y.3d 1151, 32 N.Y.S.3d 65, 51 N.E.3d 576 [2016] ; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). The court also advised defendant of the maximum sentence that could be imposed (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 [1998] ), and the record establishes that defendant understood that he was waiving his right to appeal both the conviction and the sentence (see People v. Wallace, 141 A.D.3d 1115, 1115, 33 N.Y.S.3d 797 [4th Dept. 2016], lv denied 28 N.Y.3d 975, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).
Although defendant's release to parole supervision does not render his challenge to the severity of the sentence moot because he "remains under the control of the Parole Board until his sentence has terminated" ( People v. Sebring, 111 A.D.3d 1346, 1347, 974 N.Y.S.2d 722 [4th Dept. 2013], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] [internal quotation marks omitted] ), we conclude that the valid waiver of the right to appeal encompasses " ‘the right to invoke [this Court's] interest-of-justice jurisdiction to reduce the sentence’ " ( People v. Keiser, 38 A.D.3d 1254, 1254, 833 N.Y.S.2d 779 [4th Dept. 2007], lv denied 9 N.Y.3d 877, 842 N.Y.S.2d 789, 874 N.E.2d 756 [2007], reconsideration denied 9 N.Y.3d 991, 848 N.Y.S.2d 609, 878 N.E.2d 1025 [2007], quoting Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.