People v. Gordon

Sep 28, 2007
Versions:43 A.D.3d 1330
841 N.Y.S.2d 811

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered January 23, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]). Contrary to the contention of defendant, the plea colloquy establishes that his waiver of the right to appeal was voluntary, knowing, and intelligent (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Callahan, 80 NY2d 273, 280 [1992]; People v Lovett, 8 AD3d 1007 [2004], lv denied 3 NY3d 677 [2004]). The valid waiver by defendant of the right to appeal encompasses his challenge to the amount of restitution ordered inasmuch as that amount was included in the plea agreement (see People v King, 20 AD3d 907 [2005], lv denied 5 NY3d 829 [2005]; cf. Lovett, 8 AD3d at 1007-1008), and his challenge to the severity of the sentence likewise is encompassed by his waiver of the right to appeal (see People v Lopez, 6 NY3d 248, 255 [2006]; People v Keiser, 38 AD3d 1254 [2007]).

Present—Gorski, J.P., Smith, Centra, Fahey and Pine, JJ.