Opinion
467 KA 21-01124
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Michael WILSON, Sr., Defendant-Appellant.
KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It 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 assault in the first degree ( Penal Law § 120.10 [3] ), attempted assault in the second degree (§§ 110.00, 120.05 [9]), and endangering the welfare of a child (§ 260.10 [1]).
We reject defendant's contention that his waiver of the right to appeal is invalid. County Court's oral colloquy amply established that the right to appeal was "separate and distinct" from those rights automatically forfeited by pleading guilty ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Cromie , 187 A.D.3d 1659, 1659, 133 N.Y.S.3d 167 [4th Dept. 2020] ) and did not "utterly mischaracterize[ ] the nature of the right ... defendant was being asked to cede" ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] [internal quotation marks omitted]). Indeed, we note with approval the court's reliance on the Model Colloquy, which "neatly synthesizes ... the governing principles" regarding the waiver of the right to appeal ( id. at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal). In addition, the court informed defendant, before he entered his plea, that any challenge to the severity of his sentence would be encompassed by the waiver of his right to appeal, while clarifying that the legality of the sentence could still be challenged on appeal. Thus, "all the relevant circumstances reveal a knowing and voluntary waiver" ( Thomas , 34 N.Y.3d at 563, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez , 6 N.Y.3d at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).